Preamble

The House met at half-past Nine o'clock

PRAYERS

[MADAM SPEAKER in the Chair]

Orders of the Day — Health Service Commissioners (Amendment) Bill

Not amended in the Standing Committee, considered.

New Clause 4

TIME LIMIT ON MAKING OF COMPLAINTS (No. 2)

' . Complaints may be made under section 3(1) of the Health Service Commissioners Act 1993 (general remit of Commissioners) for a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.'.—[Mr. Forth.]

Brought up, and read the First time.

Mr. Eric Forth: I beg to move, That the clause be read a Second time.

Madam Speaker: With this it will be convenient to discuss the following: Government new clause 5—Requirements to be complied with.
Government new clause 6—Transitional provision.
New clause 7—Time limit on making of complaints about providers who have retired or resigned—
' . The limitation for a complaint under section 3(1) of the Health Service Commissioners Act 1993 (general remit of Commissioners) shall be the same as that which applies to an action for clinical negligence at common law, notwithstanding that the person the subject of the complaint has resigned or retired from the National Health Service.'.

Mr. Forth: Madam Speaker, I hope that you agree that it is relevant at this stage of the Bill's proceedings if I briefly outline the provenance of the new clause. Interested parties who look at the Order Paper and the amendments might be momentarily puzzled about why such a new clause should have appeared out of the blue, particularly as the Bill has received such support at all its stages hitherto.
In introducing the Bill on Second Reading, my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) said:
The purpose of the Bill is to close a loophole in the Health Service Commissioners Act 1993, which allows general practitioners and others involved in health matters to retire to avoid investigation by the health service ombudsman. For example, GPs who are worried about being investigated by the ombudsman can simply retire from the national health service to avoid answering for their actions.—[Official Report, 3 March 2000; Vol. 345, c. 664.]

That was a very elegant statement by my right hon. Friend of the aims of the Bill. That elegance, and the persuasiveness of the argument that followed—which I need not repeat or rehearse at this stage—easily persuaded the House on Second Reading that the Bill should receive widespread support.
The fly that appeared in the ointment, however, came later in the debate. The Under-Secretary of State for Health, the hon. Member for Birmingham, Edgbaston (Ms Stuart), said:
May I share some of the Government's concerns? A practitioner may still get off the hook if the time limit is brief, but we have to reach a compromise between what is fair and what is workable for all parties concerned.
The Minister, very fairly, said to the House, even at that stage, that although she was supporting my right hon. Friend's Bill, she had some reservations about it. She went on to say—presciently, if I may say so:
Perhaps the worst aspect of the current situation is that there have been cases of the commissioner beginning an investigation only to have to discontinue it because the practitioner resigns or retires. For example, in a case involving one GP, the statement of complaint was issued, but the commissioner was informed that the GP was due to retire in two months.—[Official Report, 3 March 2000; Vol. 345, c. 698–699.]
There again, we have the statement of the problem as it emerged on Second Reading.
The issue was taken up in Committee. When Standing Committee C convened on Wednesday 29 March, my right hon. Friend reminded the Committee of what the Minister had said. He quoted the hon. Lady's remarks made on Second Reading on 3 March 2000 at column 697:
One of the key elements of any complaints process must be that it is fair to all parties. The proposals in the Bill would potentially leave the practitioners and providers involved susceptible to investigation by the commissioner indefinitely.—[Official Report, Standing Committee C, 29 March 2000; c. 3.]
That is the question before us on Report. Having had that warning of the problem, my right hon. Friend then picked up from the Minister the other aspect of the difficulty, which is where we are. He said that the Minister suggested on Second Reading that there should be a limitation on the time taken to deal with those problems. So it was already acknowledged, by the Bill's Committee stage, that there was a problem about time limits.
Later in the Committee's proceedings, the Minister said:
I made it clear on Second Reading that we should be fair to all parties, but giving the Health Service Commissioner indefinite powers to investigate ex-practitioners did not seem to be fair. I gave notice that the Government would table an amendment to the Bill to introduce a time limit on how long after, for example, a GP had retired, the commissioner should be able to investigate a complaint about him or her.
Then she said, in her fair and even-handed way:
Developing a time limit proposal is not as straightforward as it might seem at first.
I can echo the hon. Lady's sentiments. Indeed, that comment is an understatement. It may be a tribute to the tightness of the Bill's drafting, but I found—and I gather that this was a general experience—that to draft an amendment that would reflect and deal with the problem of time limits within the context of my right hon. Friend's Bill proved remarkably difficult. However, I tabled a new clause, and it has been selected for debate—something of


a triumph in the circumstances. By doing so, I have managed to put a wedge in the door. I shall shortly refer to the Government's new clauses, which provide a different slant and a different solution to the problem.
The Minister's remarks in Committee helped set the stage for this proposal. What she and my right hon. Friend said has demonstrated that although we were prepared to accept the thrust and principle of the Bill, the fact that the difficulty emerged and was discussed sensibly in Committee and that we are returning to it on Report reflects well not only on my right hon. Friend but on the way in which the process has unwound. The Minister's words go some way towards explaining the matter. She continued:
As I said on Second Reading, we must agree on its length—
that is, the time limit—
and we have discussed that point with the commissioner. Whatever period we decide on, we must work through the question of when we start the clock. How will we deal with someone who has been out of NHS practice for more than the agreed period, but who decides to rejoin? How will we make sure that we catch all types of independent provider, from the sole proprietor of a small nursing home to the big company with a string of private hospitals?—[Official Report, Standing Committee C, 29 March 2000; c. 5–6.]
The Minister posed that question in Committee. In these proceedings, we must judge how far my modest little provision or the Minister's mega new clause 5 can deal satisfactorily with the problems. That aspect of the background is relatively clear.
My new clause and the Minister's take somewhat different approaches to the matter. Mine was deliberately simple and straightforward. The key question is whether it will deal with the problem as comprehensively as it should. It states:
Complaints may be made under section 3(1) of the Health Service Commissioners Act 1993…for a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.
I shall come to the Minister's new clause 5 in a moment—strictly speaking, it is the Secretary of State's new clause, but I shall attribute it to the Minister for the purposes of the debate; she was probably its author. It is a genuine coincidence that both new clauses would set a time limit of three years.

Mr. Andrew Dismore: The right hon. Gentleman may not have had the chance to read my new clause 7. That too provides for a limit of three years, but with quite a few exceptions.

Mr. Forth: I was looking forward with great anticipation to hearing the hon. Gentleman explain his new clause. I am not a lawyer and it appeared slightly opaque to me—I hope he will take that comment in the spirit in which I offer it. It will be interesting to compare the new clauses.
However, as I had not—and could not have—read the Minister's new clause before I tabled mine, I searched for the reason why we had both come up with the same period. The only explanation that I could think of was that, as I had spent almost nine years in government, I had perhaps absorbed, through a form of osmosis, the thought processes that occur in a Department—the excellent briefing and support that Ministers receive from their

officials and the options that are examined. Even after so long out of government, perhaps enough of that is left in me that I homed in on the same period that the Minister has much more scientifically come up with. It is a warming coincidence that we find ourselves so readily in agreement on this occasion. That comforts me, because knowing as I do the exhaustive process by which the Minister will have reached that conclusion, it bodes well for the debate and for the conclusion at which, I am sure, we shall readily arrive.
Needless to say, although we have arrived at the same period, there are differences in the way in which we did so. My approach was deliberately simple. The Minister's new clause refers to the original measure—the Health Service Commissioners Act 1993. Significantly, section 9(4) states:
The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so.
In that sense, a time limit had already been built into those provisions. We are now considering a different time limit in order to give different protection. I am not aware that the original limit has been disputed. It must surely be reasonable that, if someone has a genuine complaint, it should be brought to the attention of the commissioner within a reasonable time limit—one year, in that case.
We are discussing whether practitioners should be left vulnerable to complaints for an indefinite period. There is a balance of argument. My right hon. Friend the Member for Wealden may originally have had it in mind that to set any time limit might, in some circumstances, act against the interests of the person wanting to make a complaint. That is a reasonable starting point. That argument may well be rehearsed during the debate. We must not rush in without giving it full consideration.
However, the discussions on Second Reading and in Committee identified another problem—the other side of the coin. We must achieve some balance and even-handedness between the reasonable rights of the person making the complaint and the person complained against. That is where the judgment as to time inevitably comes in. What is a reasonable amount of time in which to allow a complaint to be laid, while not leaving people vulnerable to complaints for the rest of their lives? That could be the case if we do not amend the Bill.

Mr. Philip Hammond: Will my right hon. Friend clarify a point about his new clause and his understanding of the new clauses grouped with it? Is the three-year time limit—or whatever limit is proposed—to be understood as starting from the moment when a complaint is made to the health service commissioner or from the moment at which a formal complaint is made in the overall national health service complaints system? If a complaint had been laid within the three-year time limit at the lower entry point, would it be possible, after that limit, to make reference to the health service commissioner, if the earlier stages had taken a long time?

Mr. Forth: That is a fair question. At a glance, I am not sure whether it is answered by my new clause, nor—at an even briefer glance—by the Minister's new clause, although that is for her to say.
However, my hon. Friend makes an important point. We face a dilemma: should we be tempted to get bogged down in details so as to cover all eventualities, or do we want to keep matters simple? I readily concede that simplicity has many virtues, but one of the problems with a simple—although not simplistic—approach is that it may not deal with all eventualities. In new clause 4, I was trying to deal with the problem that I thought had been identified on Second Reading by the Minister and in Committee. I wanted to try to limit the period during which people were vulnerable to a complaint, following either their natural retirement or their deliberate resignation from the health service or other employment. That was my focus.

Mr. Andrew Miller: I have listened with interest to the debate as to whether there should be a three-year period. If, within the period, the commissioner decided that there was a prima facie case to answer, one would think that the process would automatically allow for the continuation of an investigation of the complaints. I need to be satisfied that the right hon. Gentleman's new clause would provide for that.

Mr. Forth: My new clause states:
Complaints may be made…for a period not exceeding three years following retirement or resignation.
I would interpret that as meaning, literally, that the complaint should be made, laid or initiated within that period. Within that are subsumed several questions, such as how long it might be reasonable for the commissioner to deal with a complaint before an expiry of the process. I do not know whether we need to get involved in that issue, but we should properly debate whether the elegance—as I would claim—of my new clause or the Minister's even more comprehensive new clause deal sufficiently with that point. We must tease out the answer.
I confess that I am already starting to doubt whether my elegant new clause will meet all the requirements. We shall have to consider that in the debate. Given what my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) and the hon. Member for Ellesmere Port and Neston (Mr. Miller) have just said, we may be able to identify circumstances that will not be adequately covered by the simple approach and may, therefore, require a more complicated one. I shall wait until I hear the Minister and more of the debate before I make up my mind. I am known to be legendary for my flexibility and reasonableness, so I do not want to stick to my new clause for any longer than is credible in the light of our debate. I want to ensure that the Bill emerges from that process in the most viable and effective form possible. That is why we are here and that is our shared objective.
The questions that have already been raised illustrate the surprising complexity of the issues. It may be that, on Second Reading and in Committee, we thought that it would be a relatively straightforward process and, when I framed my new clause, I thought that too. We thought that we were dealing with one dimension of the problem—the protection of the person complained against in the light of his or her resignation or natural retirement from the service.
It has already become apparent that other possibilities will inevitably arise. For example, will there be subsidiary time limits within the time limit stipulated? Will they start

from the point at which a complaint is made, run through the initial stages of the complaint being dealt with by the commissioner and then come into conflict with the matter of retirement or resignation from the service? Those issues must be considered and that is why we shall have to examine closely and positively the Minister's new clause. Unsurprisingly, it is an attempt to deal with such dimensions and it emerged from a process with which many of us are familiar. A debate took place, the Minister acknowledged a difficulty, signalled that point fairly and gave an undertaking in Committee that it would be dealt with. The problem then went to the Department where the Minister set a challenge to her officials. They resolved it to their satisfaction and the parliamentary draftsman has provided his or her solution.

Mr. Tim Collins: I apologise for not being able to be present for the beginning of my right hon. Friend's speech, so I do not know whether he has covered this point. However, there is at least one respect in which his new clause is significantly superior to that tabled by the Minister. His does not exclude those who have been struck off in the NHS whereas the Minister's does.

Mr. Forth: I hope that that is so, and I am grateful for my hon. Friend's support. New clause 4 contains the words
following the retirement or resignation from the National Health Service
and I now wonder whether they would cover someone who has been struck off. Retirement has one meaning and resignation another. The implication of my hon. Friend's comment is that someone who has been struck off has not retired or has refused to resign; he is forced to leave. I am now worried. My hon. Friend was generous in suggesting that my new clause covered such an eventuality, but I now doubt whether it does. I leave that question hanging for the moment, because the Minister might have to deal with it if we are to receive a satisfactory answer. In a sense, I am glad that my hon. Friend raised that issue.

Mr. Dismore: When the right hon. Gentleman hears the argument in favour of my new clause 7, he will find that it deals with that issue.

Mr. Forth: The hon. Gentleman hints that he believes that his solution will be more effective than mine. Admiring him as I do, I do not necessarily have much doubt about that. I do not want to delay the House or prolong my little contribution to the debate unnecessarily. However, at this stage, we can be fairly clear what the problem is, because it was elegantly set out. I hope that we shall have answers to it. I am confident that the Minister will answer. Whether the hon. Member for Hendon (Mr. Dismore) can persuade us that his solution is superior to the Minister's remains to be seen.
My new clause deals simply, elegantly and comprehensively with one part of the problem. Subject to what the Minister and my right hon. Friend the Member for Wealden say, we may not need to make a choice between the new clauses. A battery of new clauses may prove to be the best answer to the problem. Not least among those new clauses may be that of the hon. Member for Hendon, shrouded as it is in a legalese that is designed—whether by parliamentary draftsmen or


lawyers—to force us to pay for or, as in this case, to listen at length to the legal advice necessary to untangle it. There is nothing wrong with that, especially as such advice is free in this place.
We believe that we understand the problem, but the solution may not be as simple as we thought. It should be dealt with and I hope that my right hon. Friend the Member for Wealden will guide us as to whether he thinks that the Bill requires what is suggested in the new clauses. I gained the impression from what he said in Committee that he believed that the problem must be dealt with, and our job is to decide which of the solutions on offer is the best. I submit mine and I look forward to hearing from the proponents of the others.

Mr. Dismore: It is a great pleasure to follow the right hon. Member for Bromley and Chislehurst (Mr. Forth). I listened to his explanation of how complicated the issue is. I agree that it is much more complicated than people might have originally thought when we discussed it on Second Reading.
The starting point for considering the time limit is to return to first principles and ask what the purpose of the ombudsman is when he deals with complaints in the national health service. Two issues need to be considered. The first is that the ombudsman is part of an on-going process, as the hon. Member for Runnymede and Weybridge (Mr. Hammond) suggested when he asked about the time frame in which a complaint in the NHS system develops. Secondly and more important, we must find an alternative remedy to legal proceedings.
There is probably cross-party consensus in trying to minimise the number of legal actions that the NHS has to defend. The figures for the cost of such actions are astronomical—about £billion a year, which is more or less equivalent to a penny on income tax. Therefore, we should try to minimise the need for legal action by providing alternative remedies. One of the most important of them is the power to take a case to the ombudsman to obtain another form of redress.
On Second Reading, I tangentially made the point that the ombudsman's powers need to be strengthened in several different ways. However, we need to produce a time limit that is not weaker than the one that a complainant would have through the courts. We do not want to cut off one avenue and force people to go to law because the ombudsman cannot entertain their complaint as a result of the cut-off imposed by the time limit. That is where my new clause is relevant because it would equate the time limit for a complaint to the ombudsman with that which would apply in the case of someone wishing to sue the NHS. I shall develop that point at greater length shortly.

Angela Smith: I wish to make a tangential point on which I would be grateful for my hon. Friend's advice. Does he accept that the time limit is not the only reason why people prefer to go to court rather than to the ombudsman? The other factor is the ombudsman's limited power. If we strengthened that power, more people would take their complaints to him in the first place.

10 am

Mr. Dismore: I am grateful to my hon. Friend, with whom I agree. That was an issue that I had hoped to address on Second Reading and in amendments that I tabled for today's debate but which, unfortunately, were not selected. I may therefore address it in our debate on later amendments. She makes a cogent and important point: the stronger the powers of the ombudsman, the less likely people are to regard going to court as their only remedy.
We must therefore try to ensure that the time limit in the Bill does not provide a less effective remedy than going to court. No one disputes that we need a time limit. However, we must balance the needs of the complainant and the health service provider in determining where to set that limit. If we do not get that right, people will simply start to sue.
Before I go into the detail of my new clause, I point out that the health service commissioner thinks that a three-year time limit would be appropriate because it would tie in neatly with existing limitations on civil litigation. Of course, the Government new clause and that tabled by the right hon. Member for Bromley and Chislehurst would not do that, as they would not provide for the fine tuning that exists in civil litigation. Indeed, they would provide a somewhat blunter instrument, as they simply set the limit at three years—take it or leave it. My proposal is more sophisticated and would allow for a series of eventualities.
There is a key distinction between my new clause and those of the Government and the right hon. Gentleman, which apply the time limit after the retirement or resignation of the doctor concerned. Effectively, the doctor could face proceedings up to three years after he had retired or resigned. My new clause involves a more general time limit, which would apply whether or not the doctor had retired. It uses the word "notwithstanding". By contrast, the right hon. Gentleman's new clause states:
following the retirement or resignation,
and the Government new clause uses the phrase
after the last day on which
someone was a family health service provider or independent provider.
My new clause would therefore address the position of someone being struck off, which was raised by the hon. Member for Westmorland and Lonsdale (Mr. Collins). My new clause is all-embracing and would catch all doctors in all circumstances, notwithstanding their resignation or retirement. The Bill excludes some people, but my new clause would bring them into the fray.

Mr. Hammond: The effect of the hon. Gentleman's new clause would be considerably to tighten the scope for an individual to bring a complaint to the ombudsman in all circumstances. Is that his intention?

Mr. Dismore: My intention is to try to equate the powers of the ombudsman with those that apply to the courts. In practice, my new clause would not have the effect suggested by the hon. Gentleman because the ombudsman already operates an unofficial one-year limit on complaints. My new clause would give complainants and doctors subject to complaint greater certainty about where they stand. It is a question of striking the right balance between the two parties.
The logical conclusion to be drawn from the hon. Gentleman's comment is that until his retirement and, indeed three years after that, a GP could be open to complaint about an event in the early years of his practice as a young trainee GP. If he was in his early 20s at the time of the event, he could be open to complaint for 40 or 50 years. That cannot be right. However one regards the situation, a limit must be applied. I believe that three years is the correct period, with appropriate exceptions being built into the system.

Mr. Hammond: Surely the logic of what the hon. Gentleman said about the ombudsman operating an unofficial one-year limit on complaints is that we are wasting our time discussing the matter?

Mr. Dismore: The Bill and the Health Service Commissioners Act 1993 do not specify a time limit. The ombudsman operates an unofficial one-year time limit as custom and practice, but a future ombudsman may decide to operate a completely different system, and the period may be shorter or longer. It would therefore be appropriate to incorporate a time limit in the Bill. My proposal would achieve that objective and cover all doctors. It would provide protection and strike the right balance for those doctors who have ceased to practice, whether as a result of retirement, resignation or another reason, such as being struck off.
The meat of my new clause is that the time limit on complaints should be the same as that applying to an action for clinical negligence in common law. The normal time limit is three years, but there is a series of exceptions to that, which should be incorporated into how the ombudsman will operate. The first exception affects children.
At the moment, a complaint involving a child can be brought only within three years of an incident. However, in common law, the three-year time limit applies from when the child obtains the age of majority. A child may have a grievance that his or her parents decide not to take up with the ombudsman. Nevertheless, the child may feel strongly about that grievance and, when he or she reaches the age of 18—notwithstanding the fact that it may be more than three years since the incident—is empowered to bring a complaint to the ombudsman. In common law, that child would be entitled to bring an action for damages for clinical negligence. It is important to ensure that a complaint to the ombudsman does not disadvantage children, given that they have rights in common law to bring an action for clinical negligence.
Secondly, the three-year time limit applies either from the date on which the cause of action, meaning the matter of complaint, accrued in common law or—this is an important exception—to a later date on which the injured person gained knowledge of his or her injury. In many medical negligence cases, people do not immediately realise that they are victims of malpractice. They do not realise what has gone wrong, so they go to another doctor, and it takes for ever to find the cause of the problem. Eventually, some years later, they may find that a surgeon has left a piece of equipment inside them or taken the wrong bit out. It sometimes takes a long time to determine such issues.
In common law, section 14 of the Limitation Act 1980 sets out the factors that apply to the date of knowledge. It deals with factors relevant to the date of knowledge of the

complainant, or the claimant as he is called now, following the change of terminology in last year's civil justice reforms—although the Act predates those changes and refers to the plaintiff. Those factors include
that the injury in question was significant; and that the injury was attributable in whole or in part to the act or omission which is alleged to constitute…breach of duty;
as well as
the identity of the defendant.
Often it is difficult to determine identity. For example, someone bringing a complaint against a hospital may have been treated by a nameless person in the accident and emergency department. Indeed, the last thing that they will ask when receiving treatment is the name of the doctor or nurse. The Act says that a person's knowledge
includes knowledge which he might reasonably have been expected to acquire…from facts observable or ascertainable by him; or…with the help of…appropriate expert advice which it is reasonable for him to seek.
Those exceptions would greatly improve the proposals of the Government and the right hon. Member for Bromley and Chislehurst. The framework should include the standard three-year time limit, which we all agree is appropriate, but should also provide exceptions for those people who, for one reason or another, do not know they have been injured—

Mr. Hammond: I must interrupt the hon. Gentleman because he said that we all agree that the standard three-year time limit is appropriate, but he is proposing a very different three-year time limit from that proposed by the Government and my right hon. Friend the Member for Bromley and Chislehurst. I am not at all sure that we have established that there is a consensus in the House that a three-year time limit from the event is appropriate.

Mr. Dismore: I am grateful to the hon. Gentleman for clarifying the position of the Opposition. Perhaps I should have said that we all agree that a three-year time limit is appropriate, but that we may disagree on where it should kick in.
The important point is that we need a series of exceptions to the rule. There will always be exceptions, and if we do not provide a degree of common sense about when people know or do not know that they have been injured, we run the risk of creating injustice and forcing people to seek alternative remedy to the NHS ombudsman in the courts.
The catch-all provision in section 33 of the Limitation Act provides a general discretion, notwithstanding all my points about section 14 on the definition of the date of knowledge. Such a discretion is important. It empowers the courts in civil litigation and, should my amendment be accepted, the ombudsman in the case of a complaint, to exercise a degree of common sense.
If it is equitable to allow a case to proceed, the courts can permit it to do so depending on the degree of prejudice suffered by either side. The court may consider: whether there are good reasons for delay of the complaint; the evidence available and whether it continues to be cogent or has become weaker through the passage of time; the conduct of the parties and the extent to which, for example, requests for information from the patient to the doctor were properly and promptly answered; the extent to which the claimant acted promptly once he knew all


the relevant facts; the steps that the claimant had taken to obtain the necessary medical or other expert advice; and the nature of the advice received. All those factors relate to the general equity of deciding whether a complaint should be permitted.
My new clause would strike a fair balance between the rights of claimants and doctors. Doctors would know that, in normal circumstances, there would be a three-year time limit for a complaint, irrespective of whether they stay in the profession or leave for whatever reason. On the other hand, claimants would know that they had to get their skates on to ensure that the complaint was brought within three years. The new clause would also provide a general series of commonsense exceptions to the rule, which would apply to cases in which, for example, the claimant simply does not know, for whatever reason, that they have been injured, and ultimately a general discretion under which it would be fair to extend the time limit.

Mr. Hammond: The hon. Gentleman still has not explained whether the three-year limit should apply to the initiation of a complaint at the first tier of the NHS complaints procedure or refer specifically to the point at which a complaint was made to the commissioner. If it is the latter, does he have any information about the average length of time that it takes to exhaust the first and second tiers of the NHS procedure?

Mr. Dismore: The point is answered in my new clause, as it is in those tabled by the right hon. Member for Bromley and Chislehurst and by the Government—although I have not cross-referred Government new clause 7. Like my new clause, the right hon. Gentleman's refers to the time limit in which a complaint must be made to the commissioner under section 3(1) of the Health Service Commissioners Act 1993: three years. That would not therefore include any period previously dealt with while exhausting earlier stages of the complaints procedure.
I get the impression from the commissioner's most recent report that the procedure can sometimes take a year or two. The hon. Member for Runnymede and Weybridge may find it instructive to read the commissioner's evidence to the Health Committee when it was considering the issue of complaints. A year or two is far too long. We must find ways of speeding up the complaints process greatly. Otherwise, to return to my bull point, if I may put it that way, people who have no confidence in the complaints procedure and think that it will take too long and not provide an appropriate remedy, will inevitably find themselves running off to the courts in search of one.
10.15 am
I turn to the transitional arrangements in Government new clause 6, about which I have great concerns. It could create massive injustice between different complainants. Two people could have complaints arising from a doctor's conduct one day—let us say today. The doctor has had a bad day and somehow upset two of his patients. One patient is very cross and makes a complaint on getting home, which is proceeded with. On Monday, the GP suddenly decides that he has had enough and will retire. Under the transitional arrangements, the complaint made by the patient who acts promptly would be dismissed.
The second patient allows the complaint to brew a little, is clued up from watching our debate on television and realises, "Aha; if I wait until the Bill becomes law, I can bring a complaint that will be dealt with." So, two people with the same complaint against the same doctor on the same day would be treated very differently under the proposed provisions. That returns to the point that the transitional arrangements deal not with the date of the matter complained of, but with the date of the complaint. It would be far better if new clause 6 addressed the former. That would produce the equity that is lacking in the Government's present proposals.
I shall give an illustration of the problem arising in practice—in relation not to the NHS but to an amendment to the criminal injuries compensation scheme introduced by the right hon. Member for Penrith and The Border (Mr. Maclean) under the previous Government. I am afraid that he is not in his place; he always seems to miss me raising this issue, from which many interesting lessons for the way in which legislation is drafted can be drawn. I have previously dealt at length with the difference between "may" and "shall" in the case to which I shall refer.
In 1994, the then Government introduced massive cuts in the criminal injuries compensation scheme, but to sweeten the pill, people whose infant child had been killed were to be for the first time entitled to bring a claim for compensation and to a lump-sum payment. In my role as a lawyer, I challenged the Government in the courts and the cuts were thrown out. The Government then had to return to the old scheme until the matter was put right through the introduction of a much better scheme in 1995.
Some people had made their claims under the amended provisions, which enabled them to claim compensation. Some claims were allowed and money collected. Some claims were in progress, but effectively dismissed by the result of the court action—in a similar context to the proposed transitional arrangements. People were not allowed to make another claim because they would be re-opening one that had been dismissed.
There are 200 families in such circumstances who, to this day, bear a great grudge and grievance against the previous Conservative Government. They feel that they have been unfairly treated owing to the way in which the transitional arrangements operated. The proposed transitional provisions in new clause 6 are very similar because they relate to the date of the claim, not to the date of the incident. Perhaps the Government should think again about new clause 6. Providing for the date on which the incident complained of took place would produce far greater certainty for both complainants and doctors, and obviate the risk of injustice.
My new clause would provide the answers to the issue of the time limit. It would provide not just a fixed time limit but the flexibility that we need in its application. I hope that the Government will also look closely at the transitional provisions, perhaps withdrawing their proposals and returning with ones based on the date of the incident complained of. That would provide greater certainty and fairness between one complainant and another.

Mr. Miller: I listened with great interest to my hon. and erudite Friend the Member for Hendon (Mr. Dismore). As usual, a lawyer's argument is persuasive. The snag is that I have some suspicion about the role of lawyers in this area of litigation.
I am sure that many of us have dealt with constituency cases in which we feel that lawyers representing the regional health authority or medical trust involved have acted unreasonably by repeatedly delaying proceedings. In some regions there is clearly a practice of stonewalling complaints, so that the patient dies, gives up or is bankrupted and cannot pursue the matter further. I find such practices unacceptable, as are those of lawyers representing complainants who egg the complainant on because they may get a few bob out of the case. There is a worrying factor in that relationship.
Of the people who come to Members of Parliament with complaints about the health service, some are in it for what they can get—the number of noughts on the cheque—but most want to know what happened and what went wrong, and they want someone to apologise to them for the injustice that occurred. Because the medical procedures available are so highly technical, everyone who goes into hospital could find something that has gone wrong.
Some hon. Members may remember the time when I was hobbling round this place on crutches during the previous Parliament, having had treatment in the now demolished Westminster hospital—not demolished because of me, I would add. The hospital ran out of Heparin, which was necessary for the treatment that I was receiving. Could I have made a complaint? Could I have made a complaint that there were no teaspoons on the ward, because of cuts under the previous Administration? I am sure I could have complained about something.
Some lawyers would have pressed a client to make a legal complaint about such matters, but the majority of people do not want that. They simply want an explanation of what happened and why things went wrong, and they perceive justice as getting that explanation. I am sure that the right hon. Member for Wealden (Sir G. Johnson Smith) accepts that.

Mr. Dismore: I am grateful to my hon. Friend. I listened with interest to what he said, and I agree with his last point. Can he advise me what the correct course of action is in such circumstances? No lawyer who knew what they were doing would advise anyone to sue in such a case. The only course of action available is through the clinical negligence procedure.

Mr. Miller: I hear what my hon. Friend says, but it is difficult to specify the boundary without getting drawn into cases that are current in my constituency, which may come before the commissioner in due course, and one of which may well come before the court. Going to court is justified in cases where there is clear evidence of negligence and a long-term built-in financial disadvantage, but such sad cases are few. Because of the highly technical procedures in hospitals, there are bound to be problems, and people want explanations about what went wrong.
How can we deal with the matter? We can set no time limit, or a fixed time limit, or a fixed time limit with exceptions built in, or some such hybrid process. The right hon. Member for Bromley and Chislehurst (Mr. Forth), who opened the debate, did the House a favour by stimulating the discussion. As I said in my intervention, we should ensure at least that within the time frame set, a prima facie case is established by the commissioner,

although he may undertake an investigation and make a ruling substantially after the three-year period—it is possible that a delay may be required for medical reasons.
The other possibility is that any case that appeared on the commissioner's desk up to the three-year deadline could be considered. I am worried about that simplistic approach. Parallels could be drawn with other forms of complaint that are open to the public, such as industrial tribunal procedures. Most tribunal chairmen are wary of complaints that appear within a day of the three-month limit for making them. There might be exceptionally good reasons, but such a late complaint seems like an attempt to get something out of the dismissal or whatever. By and large, chairmen are reluctant to accept that that is a proper way of proceeding. The complaint should be lodged as soon as someone knows that he has grounds for a complaint.
I hope that when my hon. Friend the Minister responds to the debate and explains her new clauses, she will give us her views on how the commissioner should handle cases within the period set. Should the commissioner accept any case brought to his attention during the three-year period proposed by the right hon. Member for Bromley and Chislehurst? Should the commissioner have the power to make exceptions beyond the time limit? Are there medical circumstances about which my hon. Friend, as the Minister, knows more than I, that would justify exceptions being made? Should the commissioner deal only with cases in which he has established prima facie evidence that a complaint is justified?
That must be clarified before we determine which route we take. The approach outlined by my hon. Friend the Member for Hendon would allow the flexibility that I want, but I am slightly worried that it might tempt the decisions out of the ombudsman's arena and into the courts. I should be happy to hear my hon. Friend's comments, if he considers it appropriate to intervene.

Mr. Dismore: I am grateful to my hon. Friend. That would arise only if someone undertook a judicial review case against the ombudsman for failing to investigate a complaint. In practice, that would never happen. The court would have to be satisfied that the ombudsman had acted unreasonably. Bearing in mind how the Limitation Act 1980 has been construed in the past, that would be unlikely. Going to court for that purpose would be tantamount to throwing out the baby with the bath water. It would be simpler to litigate the original issue.

Mr. Miller: I am grateful to my hon. Friend. I assume that the same logic would apply, whichever clause we adopted. My hon. Friend nods: I am grateful for the free legal advice that I am getting. [Interruption.] It is not free from the Opposition, I hear.
My hon. Friend raised an interesting point about new clause 6 and the transitional arrangements. I know that he has dealt with extremely difficult cases in his previous life. He makes a fair point, which the Minister should consider. She should explain how we can avoid the pitfall that my hon. Friend described in the context of legislation on other matters. Perhaps the Government new clauses provide the answer because they would allow the ombudsman to determine whether to deal with complaints that had not avoided the pitfall. To achieve that, we must be sure that the amendments and existing laws that govern


the commissioner's conduct empower him, without fear of legal challenge, to handle cases in the time frame that has been described.
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I appreciate that some cases, which led the right hon. Member for Wealden to introduce the Bill, are in a vacuum. However, I hope that we will receive an explanation of the point that my hon. Friend the Member for Hendon raised because of his detailed experience of other matters.
My hon. Friend also raised a difficult point for all of us who are parents: the rights of our children when they are children and those they gain when they reach the age of 18. The problem is tortuous and even more complicated in cases of complaint against the health service. The evidence necessary to sustain a complaint disappears with time. The scientific evidence showing that a complaint should have been lodged on someone's behalf 18 years ago may become stronger as our knowledge of medicine increases, but the key witnesses—doctors, nurses, visiting relatives—get older and frailer, or move and become untraceable. The medical staff retire or leave the profession. That poses problems. Some logical limit should therefore be placed on rights. Responsibility should be vested in the parents; we should not simply leave the door open.
The Government are anxious to ensure that money is spent wisely in the health service and directed towards patient care rather than long, bureaucratic and legalistic procedures. If cases such as those that my hon. Friend the Member for Hendon described were open to the commissioner, they could place an intolerable burden on the sort of investigation the commissioner might undertake. I therefore counsel my hon. Friend to reconsider, not on the basis of absolute justice for specific cases, but of practicality. We have to deal with the realities of the circumstances.
In 10 or 20 years' time, we may be able to reconsider if methods of recording information and holding scientific data improve. However, we are considering cases in which the patient will often have changed doctors, and have been treated by different specialists. Historically, records have not been well kept, although some GPs and hospitals are exceptionally good at keeping them.
I shall put a specific case that I know well to my hon. Friend the Member for Hendon. A young person had a series of operations at 14 months because of the failure of a paediatrician to undertake normal checks in the proper manner at birth. That may possibly be a justifiable case in my hon. Friend's legal opinion. If the parents decide not to litigate when the child is very small, should the child have the right to pursue the case when it has grown up? That is a difficult judgment to make, especially when the knowledge about the effect of the condition has also changed with time.

Mr. Dismore: When the child reaches the age of 18, he or she has the right to go to court because the limitation period for common law starts from the age of 18. New clause 7 would provide an alternative remedy and enable the parents or child to go to the ombudsman instead of the courts. If my hon. Friend's remarks are taken to their

logical conclusion, the ombudsman option would be removed, and litigation would be the only course of action available.

Mr. Miller: I am grateful for that comment. While I understand and sympathise with my hon. Friend, I am speaking of a genuine case. I am worried that the ombudsman would be confronted with an intolerable burden because the scientific knowledge of the consequences of the doctor's action has changed dramatically. That must be true of several cases.
Some complaints are high profile—for example, those of lack of advice on inoculation. In the 1950s, some young people developed polio. However, at the time, medical knowledge was different. Nowadays, those who are not offered the sugar lump containing the magic medicine are few and far between, and if a few do not receive it, it is usually as the result of a deliberate act by the parents. It would be intolerable to involve the ombudsman in such a difficult philosophical argument. If such cases were justified, they would be exceptional and should be subject to litigation.
I am not trying to remove a human right from a child. My hon. Friend the Member for Hendon might say that I am wrong in view of recent European legislation. However, I am trying to be practical in considering the role of the ombudsman. We all want resources to be directed to the management of patient care; we want only minimal use of the procedures for the ombudsman and for litigation to deal with the exceptional cases about which we all hear from our constituents from time to time.
In principle, I am in favour of a time limit. It struck me as amusing that my hon. Friend the Minister and the right hon. Member for Bromley and Chislehurst plucked a similar time limit out of thin air. I shall investigate that. The right hon. Gentleman has either got on to the inside track in the health service, or, as he said earlier, the process of osmosis continues and the logic of the case that officials presented to my hon. Friend is the same as when the right hon. Gentleman was a Minister. I congratulate the officials on persuading my hon. Friend the Minister to adopt the proposal.
Such a time limit should be set, but I ask whether there should be exceptions to it. I hope that my hon. Friend the Minister will deal with the concerns that my hon. Friend the Member for Hendon, the right hon. Member for Bromley and Chislehurst and I have expressed, because we are all on the same side. We want to ensure that the loopholes are closed satisfactorily, that complaints can be made and dealt in a non-legal manner where appropriate and that the rights of the individuals are protected for as long as necessary—in the circumstances described by my hon. Friend, for example.

Mr. Collins: I have a couple of brief points to make. My hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) and the hon. Member for Ellesmere Port and Neston (Mr. Miller) have made some important remarks about new clause 7, which was tabled by the hon. Member for Hendon (Mr. Dismore). As I listened to the hon. Gentleman's speech, however, I found myself agreeing with him, which I have not done for three years: he made some good points.
Although the hon. Member for Ellesmere Port and Neston referred to a constituency case that led him to one conclusion—it is always right to bear in mind that hard


cases can make bad law—I was reminded of a constituency case that leads me to believe that the points made by the hon. Member for Hendon need to be taken seriously, even if new clause 7 may not be perfect.
My constituency case is directly relevant to determining whether the time limit should constitute an absolute three-year cut-off after a practitioner has left service or whether, as the hon. Member for Hendon said, the opportunities available in common law should apply, enabling the victim to take action after the information has become available to them.
More than 20 years ago, a chemical called Myodil was injected into my constituent's spine. Many of those who have had such an injection have subsequently suffered from adhesive arachnoiditis—a terrible condition that has rightly been described as involving all the pain of terminal cancer without the prospect of relief. My constituent was not told that that was the cause of her back problem for 20 years; successive medical practitioners said that it was associated with the condition of her spine. By obtaining copies of the medical notes, she found out that, as far back as the early 1970s, doctors had written that she was suffering from adhesive arachnoiditis, but for nearly two decades they did not tell her that that was the cause of the excruciating pain in which she has lived.
As the hon. Member for Hendon said, someone in those circumstances would have the right to take legal action, but my constituent has repeatedly made it clear that she is not interested in seeking large sums of compensation. She realises that nothing can be done to end that appalling pain, which has completed destroyed her life and means that she can walk only with extreme difficulty. The life that she previously led as an active tennis player has been ended. She wants an investigation into what occurred to be undertaken and published, which would be a more proper role for the ombudsman. It would be difficult for an ombudsman's inquiry to go back over such a period, but I would not want us lightly to pass a law that would make that impossible in all circumstances.

Angela Smith: The point that the hon. Gentleman highlights gives me great cause for concern. Is he suggesting that a doctor could avoid investigation by withholding from the patient the information that would allow that patient to take a case to the ombudsman?

Mr. Collins: I am sure that the hon. Lady would agree that this is an exceptional case. There are many medical people in my family, and I know that such events do not happen routinely or in other than a tiny minority of cases. However, I am concerned that the Bill and the new clauses tabled by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and by the Minister could allow a medical practitioner, who would be the rare rotten apple in the barrel, to keep information from a patient for long enough—three years, in this case—to make an ombudsman's inquiry impossible.
Such a case is less likely now because there is much wider access to medical notes and we live in an era in which such a cover-up—if that is what occurred—would

be much more difficult to undertake. We must consider whether we should enable the ombudsman to investigate such circumstances.

Mr. Miller: rose—

Mr. Hammond: rose—

Mr. Dismore: rose—

Mr. Collins: I give way to the hon. Member for Ellesmere Port and Neston.

Mr. Miller: There are many such cases, but they have two aspects. The hon. Gentleman must decide whether he wants to obtain justice on the treatment that the person received or on the subsequent withholding of information, which might have been done by entirely different people. It might be a rather old-fashioned view, but some doctors think that it is in the patient's interest not to give them certain information. We sometimes hear about that in cancer care, for example. I am unsure whether the hon. Gentleman is being swayed by the withholding of information or by the care that the patient received in the first place.

Mr. Collins: The hon. Gentleman makes an important point. A distinction can be made between the two. In the circumstances that I described, the initial problem, on both counts, stemmed from the same practitioner. In the early 1970s, it was standard medical practice for that chemical to be injected into people's spines so that it showed up on X-rays. It would not be legitimate to complain to the ombudsman about that practice because the medical practitioner did nothing unusual. Although scientific evidence of its effects existed abroad, they were not widely known in the United Kingdom. An ombudsman should be able to consider the fact that successive medical practitioners did not accurately inform my constituent of her condition, even if a lot more than three years had passed before the patient had access to the information that proved it.

Mr. Hammond: My hon. Friend seems to suggest that new clause 7 would broaden the opportunities for reference to the ombudsman, but, compared with the new clauses tabled by the Secretary of State, it would be restrictive. It is important to recognise the distinction between complaints against a hospital or a trust, which is an on-going, surviving institution, and those against an independent medical service provider, who may resign from the system and, therefore, escape jeopardy. I should not like my hon. Friend to fall into the trap of thinking that the hon. Member for Hendon wants to broaden the scope for reference to the ombudsman.

Mr. Collins: I am grateful to my hon. Friend for making those important points. The hon. Member for Hendon wanted to intervene a moment ago, so I give way to him.

Mr. Dismore: For the reasons that I gave, new clause 7 would broaden current custom and practice. However, the new rights to access to records do not apply to those written before the current law came into effect. The hon. Gentleman's constituent might have experienced that


problem; she may not have had a legal right to see her records. Access to records can be problematic because doctors can levy fees—

Mr. Deputy Speaker (Mr. Michael J. Martin): Order. The hon. Member for Westmorland and Lonsdale (Mr. Collins) has raised an important and serious matter regarding his constituent, but the proposal is narrow and refers to a time limit. We should restrict ourselves to that issue.

Mr. Collins: I respect your ruling, Mr. Deputy Speaker. The issue is whether the time limit in which the ombudsman can inquire into a case should be three years. I have established the point, and I should be grateful if the Minister would say a few words in response to the points that her hon. Friend the Member for Hendon and I have raised. Are there any circumstances in which it would be legitimate for an ombudsman to look into a case that was outside the three-year time limit that she proposes—for example, where it was perfectly clear to everyone that the complainant could not have brought a complaint within the time because they did not have access to information about the subject of the legitimate complaint until afterwards?
I referred to the other point that I want to raise in my intervention on my right hon. Friend the Member for Bromley and Chislehurst. Although the hon. Member for Hendon addressed the issue, I confess that, not being a lawyer, I am not entirely satisfied that it has been properly covered. There is a distinction between the Minister's new clause 5 and my right hon. Friend's new clause 4. New clause 4 refers to
a period not exceeding three years following the retirement or resignation from the National Health Service of the person who is the subject of the complaint.
New clause 5 refers to a period of three years
after the last day on which the person was a family health service provider.
I am willing to be guided by hon. Members with greater legal expertise than me, but it seems to me that there is a distinction, and that it is possible to cease to be a practitioner in the NHS for reasons other than retirement or resignation, both of which strike me as voluntary acts. A person could cease to be a family health provider because he has been struck off, and that is an involuntary act. The definitions are therefore different.
If they are different, that has different implications. From what my right hon. Friend said, it may not have been the intention of the wording of his new clause, but it would have the practical effect of not giving a three-year cut-off point in the case of a practitioner who had been struck off, whereas the Minister's new clause would give a blanket three years whatever the circumstances that led to someone departing the NHS.
As ever, there are arguments on both sides. I am quite attracted by the proposition that a practitioner who has been struck off because they have been found by their peers to have been in fundamental breach of their obligations to the national health service and to their patients should not be entitled to the same time-limited

protection available to GPs who have not been found guilty of an offence so serious that it leads to their being struck off. Although there are difficulties, I have some sympathy with the view that there should be a longer period in which complaints can be brought against practitioners who have committed acts so serious that they have been struck off.

Angela Smith: Does the hon. Gentleman consider it an appropriate remedy for someone who has been struck off to be investigated by the ombudsman? What confidence would that give to the patient? Would it not be a better remedy to ensure that someone who has been struck off cannot be reinstated on the medical register?

Mr. Collins: The hon. Lady may be right, but that is beyond the scope of the Bill, although I have some sympathy for her view. I would put it the other way round. The likelihood is that the person who wanted to bring a complaint against a practitioner would be entirely unconnected with the case that had led to that practitioner being struck off, but would be prevented from bringing the complaint because of the three-year time limit. Such a person may come to any one of our constituency surgeries and say, "For heaven's sake. This practitioner was struck off, and you are telling me that I can't bring a complaint to the ombudsman because he got away with it for three years."

Mr. Miller: It seems that the hon. Gentleman is agreeing with me and not with my hon. Friend the Member for Hendon on the question that I posed to the Minister. In establishing time limits, there must be exceptions so that the ombudsman can use his good sense to allow complaints to be investigated outside the time frame. The question is whether the existing legislation gives the ombudsman powers in such exceptional cases.

Mr. Collins: The hon. Gentleman has made an exceptionally helpful point, and it prefigures what I was about to say. One thing that we most sensibly do when we legislate is to give discretion to the people who have to implement the legislation that we have passed, whether it be the courts or an ombudsman who has to resolve the special cases, the difficult circumstances, and the unusual cases. The ombudsman should be given discretion within clear guidelines, so that it is clear that it could not be used widely or in any way other than to cover exceptional cases. That would be desirable, and would perhaps enable the ombudsman to investigate cases that come before him well outside the three-year period for understandable reasons. It would also enable us to address the issue of someone who had been struck off.
The hon. Gentleman makes a powerful case, and I hope that the Minister will address that and the other issues that have been raised, either in her remarks on this group or in her later comments. The ombudsman is a well trusted and well respected official, and is likely to be so for as far into the future as we can foresee, whoever he is. There is a case for giving him some discretion to enable him to look into the circumstances of a case and to take the view that, as it is on the borderline, it would be sensible to bend the rules a little to ensure that natural justice, which is what we are all concerned about, is pursued.

Mr. John Heppell: I am not convinced of the value of any of the new clauses. The person with whom I most agreed was the hon. Member for Westmorland and Lonsdale (Mr. Collins). He is right and wrong. It is not a question of giving the health commissioner discretion: he already enjoys discretion. The problem with the new clauses is that they would take that discretion away from him. I cannot see any way round that. If a fixed period of three years is written into the Bill, it will restrict the commissioner's discretion.
Like many other hon. Members, to try to figure out what the right process should be, I looked back to the purpose behind the setting up of the post of health service commissioner. I read the Library's research paper of 8 December 1995 on the Health Service Commissioners (Amendment) Bill. It contains an interesting section written by the then health service commissioner for England, W. K. Reid, who said:
Only exceptionally will I investigate a complaint about matters which are more than 12 months old. This time limit makes sense in protecting professionals from being in permanent jeopardy and also because of the difficulty of getting at the truth when a considerable period has elapsed.
That is what he said in principle, but the reality is different.
A person may not make the initial complaint until almost a year has gone by. The first stage of the complaints procedure should be fairly quick, but it can sometimes be delayed for several months. If the complainant is not happy with the first stage, he goes on to the second stage, which is the independent panel, and that can also take several months to work through. In practice, a case involving the health service commissioner goes on for 18 months to two years or beyond that.
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I understand that the commissioner is now saying that he does not want a limit of less than three years, because that would restrict his discretion to act more than one year after the event. He has said that he feels he would be unlikely to want to exercise his discretion to investigate events that occurred more than three years previously, but "unlikely" is not the same as "definite". I would want the ombudsman to investigate the sort of cases mentioned by the hon. Member for Westmorland and Lonsdale, and I am sure that the general public would as well. I recognise that there must be some limit, and I would like it to be included in guidance to the ombudsman; but I do not think that it should be a set, regular limit.
All Members will have been consulted by people with limited information about a problem that arose 10 years earlier. It is often difficult to explain that there is little that one can do oneself, little that the courts can do and, indeed, little that anyone can do about a problem that arose so long ago. People's memories are not so good after such a long time has elapsed, and records get lost.
Recently, when I was clearing out some old papers that I thought were just rubbish—council documents—I found a load of personal casework that I had done for people. I had to bring it here to shred it. I was going to chuck it in the bin, but I suddenly realised that I could not do that, because it contained a lot of confidential information.
Let us suppose that I had destroyed that information. Someone might have come to me five years later—as we all know, this sometimes happens—and said, "I have no papers, but Dr. Such-and-such will have the records," or "I gave the citizens advice bureau a copy."

Angela Smith: I am slightly confused by what my hon. Friend is saying. On the one hand, he seems to be rather against the new clause; on the other, he seems to be giving a very good reason for a three-year time limit.

Mr. Heppell: I think that there are good reasons for guidance on a time limit, but I do not think we should make that limit definitive, and say that there should be a cut-off after three years.
I was going on to say that, although we find cases such as I have mentioned frustrating, we also find cases unconnected with the health ombudsman—for instance, immigration cases and cases relating to the Department of Social Security—frustrating when a limit applies. Often, a member of the legal profession has forgotten to register a case on time. People come to me and say, "I am sorry; I have exceeded the limit by a week, but it is the solicitor's fault, not mine. What can you do about it?" I have to tell them that I can do nothing.

Mr. Dismore: Sue the lawyer.

Mr. Heppell: I am always reluctant to tell my constituents to become involved with the legal profession. My experience of their involvement with the legal profession is not good. I mean no disrespect to certain Members who may be present, but I do not hold the legal profession in the highest regard, to be honest. In many instances, its members have not served my constituents well.
The right hon. Member for Bromley and Chislehurst (Mr. Forth) managed to put the arguments against his new clause much more coherently than I could. I think he accepted that there were difficulties with it. My hon. Friend the Member for Hendon (Mr. Dismore) put the case for his new clause much more robustly. I realised last night that this was a complicated issue, but it became more and more complicated as my hon. Friend went on talking. I think that good law should be easy to understand.

Angela Smith: This may be a slightly tortuous point, but might not the fact that my hon. Friend the Member for Hendon (Mr. Dismore) is making the issue more difficult have something to do with the fact that he is a lawyer?

Mr. Heppell: That may be the problem. Perhaps lawyers think in a different way from the rest of us.
I understand that the purpose was to provide more flexibility, but it has become a case of "There is this exception, and there is that exception, and if all else fails we can refer to section 33, which gives us a general dispensation." Why have all that, when we can have a general dispensation in the first place? We can say to the ombudsman, "You have the discretion, but if you are to exceed the three-year limit you will have to be able to justify that—because there are exceptional circumstances, or perhaps because this is a case of such enormity that the


public would want the ombudsman to address it." I am sure that the ombudsman would not take that discretion lightly. If he investigated cases beyond the three-year period, he would have to be able to justify that, and justify it in public.
I disagree with new clause 7, and I am afraid that I disagree with new clause 4. I also remain to be convinced by the Minister that anything in the Government new clauses allows the discretion that the health service commissioner now has to be exercised in the future. I find it difficult to accept what I see as a weakening of the ombudsman's position. To weaken the ombudsman's position is to weaken the position of my constituents. There will always be people with genuine complaints that have failed at stages 1 and 2; the ombudsman will provide them with their last chance before they must consider the possibility of legal action. I want the ombudsman's position to be strengthened.

Mr. Hammond: I think that most of us, apart from the hon. Member for Nottingham, East (Mr. Heppell), agree that it is necessary to introduce some time limit on the jeopardy that practitioners face. That view was widely held on Second Reading and in Committee.
We have all been looking forward to the new clauses tabled by the Minister, and to have an opportunity to examine the criteria that she has selected. We have also been given that opportunity by the hon. Member for Hendon (Mr. Dismore) and my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), whose new clauses head in the same direction, but deal with the matter in a slightly different way.
We are seeking to balance two opposing imperatives: protecting practitioners from an open-ended jeopardy, and the individual's right of access to the complaints system and, ultimately, to the health service commissioner. In amendments or new clauses that place a limit on the time within which a reference can be made to the commissioner, we must strike the right balance to ensure that the system is fair to everyone.
As the debate has ranged rather widely, we are slightly in danger of losing sight of the fact that we are talking primarily about people providing general medical, pharmaceutical or dental services. We are not, in practice, talking about complaints arising from the kind of procedures that take place in hospitals. Health authorities and NHS trusts are continuing, surviving bodies; they do not, in the normal course of events, cease to provide services as a general medical or dental practitioner may. We are addressing ourselves primarily, and in practical terms, to complaints that arise in relation to general practitioners.
At the beginning of his speech, the hon. Member for Hendon emphasised the fact that the national health service commissioner represents only the third tier of a three-tier complaints system in the NHS. The key issue is when the clock starts ticking. There are two clear options, and possibly a third. The hon. Member for Hendon would have the clock start ticking at the moment when the event that gives rise to the complaint occurs, or, in exceptional circumstances, later, when knowledge of the alleged problem, or the cause of the complaint, comes to light—or when the person making the complaint reaches the age of majority.
Under the Government's new clause and, I think, the new clause tabled by my right hon. Friend the Member for Bromley and Chislehurst, the relevant point of time would be the point at which the complaint is made to the ombudsman. The clock would start to tick on the day when a practitioner ceased to provide medical, dental or pharmaceutical services. The time when the complaint to the ombudsman was made would be the point of reference in measuring whether the three years had elapsed. I have suggested a third possibility: the relevant point should be that at which the complaints procedure is embarked upon—the point where the individual first takes a practical step to seek redress for the alleged injustice.
Essentially, that is a practical point. What concerns me is that the national health service complaints procedure at the first and second tiers takes a certain amount of time to exhaust itself. I know from constituency cases of my own—other hon. Members will, I am sure, have had the same experience—that, often, if a perceived injustice—or maladministration as we should perhaps properly call it—in the NHS goes hand in hand with a traumatic experience, perhaps the loss of a relative, it may be some time before people feel able to confront that issue.
In the past couple of years, I have dealt with constituency cases where people have come to me a full year after events have taken place, having got through a bereavement period, gone back, looked in a slightly different light at what happened—perhaps in a slightly harder-nosed way—and perceived that something went wrong when the process was carried out within the hospital, or by the general practitioner. Therefore, it may be a year or so before an individual kicks off the complaints process at the first tier.
What I do not know—I hope that the Minister might be able to throw some light on it—is the average length of time taken for the NHS complaints procedure at the first and second tiers to exhaust itself. The hon. Member for Hendon suggested that it could be a year or two. If so, we could, at least theoretically, find that if a complainant started the first tier of the procedure a year or so after an event occurred, and the complaints procedure at the first and second tiers took a year or two to exhaust itself, he would no longer be able to take his complaint to the ombudsman if, in the extreme example, the practitioner in question had left the service the day after the occurrence that gave rise to the original complaint.
That might be an extreme circumstance, but it is important for us to be reassured that a three-year period to the point at which a reference is made to the ombudsman is the right time limit, will not unreasonably or unfairly exclude anyone who has gone through the whole process of the NHS complaints procedure reasonably and sensibly, and will allow for the fact that people who have suffered bereavement may take some time before they feel able to address the issue of bringing a formal complaint in the first place.
11.15 am
The hon. Gentleman would start the process from the date of the occurrence and would bring the process into line with the practice of common law. That has a superficial attraction—the alignment of the NHS complaints procedure timetable with the timetable in cases of clinical negligence—but it seems that we are dealing with two different issues.
The legal processes will deal with cases of clinical negligence. The health service commissioner is there to deal with cases of "maladministration and service failure". Those will not always involve clinical negligence, but they may involve issues that perhaps give rise to wider public interest: issues of public concern about how hospitals are run and managed, and how procedures are controlled within hospitals.
The hon. Member for Ellesmere Port and Neston (Mr. Miller) gave an example of a hospital carrying out a procedure while having run out of a drug that might reasonably be needed during that procedure. The hon. Member for Hendon intervened to indicate that that would not be a ground for a claim for clinical negligence, but it might be a ground for a claim of maladministration. It may be something that hospital managements in general wanted to review to ensure that drugs that might be needed during a procedure were in place before it started.
My real concern about the new clause tabled by the hon. Member for Hendon is that it is much more restrictive than the new clauses tabled by my right hon. Friend the Member for Bromley and Chislehurst and by the Secretary of State, in that it would include within its scope—the time limit will normally be three years—not just cases relating to practitioners who had left the service, but all cases relating to practitioners who remained in the service and, indeed, cases relating to incidents that arose in hospitals, where the complaint was against the hospital trust, or perhaps the health authority.
In seeking to tighten the scope of the health service commissioner, the hon. Gentleman is going well beyond the original intentions of my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) when he introduced the Bill. I am not sure that we would think such a measure helpful. My reading of the debate so far today, in Committee and on Second Reading is that there is no consensus in the House that we need to tighten the procedure to make it more difficult for people to bring complaints to the health service commissioner.
In his defence, the hon. Gentleman argued that it is custom and practice—one of those phrases that I have learned that lawyers use when there is no other cover available to them—that the present ombudsman will choose to look at cases only if they are brought to him within a year of the occurrence of the event. I do not know whether that is the case or not. As he said, future occupiers of the ombudsman post may choose to look differently at that, but if we are to base what we do today on the argument that it is the custom and practice of the ombudsman not to consider cases arising out of events that occurred more than one year ago, there will be no point in passing any of the new clauses. They would all be redundant. Therefore, we must ignore the current custom and practice of the ombudsman, look at what he is legally empowered to do and how we are seeking to amend those legal powers.
I ask the Minister to clarify one other small point. I apologise if it is something that has already been mentioned during deliberations on the Bill. Can she confirm that, in relation to the Health Service Commissioners Act, the term "family health service provider" includes both a person providing general medical services and a person providing personal medical services, so that the both types of family health services providers are covered?
I hope that the Minister will also be able to tell us whether the Government have any more general intentions of changing and strengthening the NHS complaints procedure, perhaps in ways that address some of the issues raised today particularly by the hon. Member for Hendon.
It seems to me that that analysis inevitably leads to the conclusion that the mood in the House does not favour new clause 7—leaving us to consider new clause 4 and new clause 5.
My hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) made a persuasive case for considering new clause 4—tabled by my right hon. Friend the Member for Bromley and Chislehurst—to be superior to the Government's new clause 5. The latter would, after three years, exclude from jeopardy all practitioners leaving the health service, whether voluntarily by retirement or resignation, or involuntarily by removal from the register. New clause 4 has the benefit of discriminating between practitioners who had of their own volition left the service—perhaps, but not necessarily, to avoid scrutiny by the ombudsman—and practitioners who had been removed from the service because their conduct had caused serious concern.
I think that there is a case for distinguishing between the two classes of practitioners, and that new clause 4 would make it possible, beyond the three-year period, to subject to investigation a practitioner who had been removed from the register perhaps as the result of another, previous case. Superficially at least, that seems to be an attractive proposal. If the Minister is not attracted by the distinction to be drawn between practitioners who have left the service for natural or voluntary reasons and those who have left by expulsion, I should be interested to hear why she thinks that it is not appropriate to draw that distinction.
It is, of course, for my right hon. Friend the Member for Bromley and Chislehurst to decide whether to press new clause 4, or to seek leave to withdraw it and allow the Government's new clause 5 to proceed. Nevertheless, I hope that, if he decides to seek to withdraw his new clause, he will press the Minister to explain how she will deal with that important distinction between new clause 4 and new clause 5.

The Parliamentary Under-Secretary of State for Health (Ms Gisela Stuart): I congratulate the right hon. Member for Bromley and Chislehurst (Mr. Forth) on his thoughtful observations. Although new clause 4 is elegant, we may not be able to support it fully. Nevertheless, it is clear that great minds think alike, although the means of achieving the shared objective may be open to debate.
Throughout our consideration of the Bill, we have regarded its purpose as being purely to close the loophole in relation to family health service practitioners and independent providers. New clause 4 would limit the remit of the health service commissioner, albeit in a small way, in relation to health service bodies. Therefore, I do not think that it would be appropriate to accept the new clause. I shall attempt to explain in more detail why we think that it should be rejected.
As some hon. Members have said, the health service commissioner has powers to investigate complaints about failures in the service provided by health service bodies, rather than complaints about the actions of specific individuals. It follows, therefore, that complaints about


treatment received in NHS organisations are the responsibility of that body. Currently, the health service commissioner can investigate such a complaint regardless of whether any employee concerned still works for the NHS because—as hon. Members have also said—the NHS body continues to be a legal entity.
The purpose of new clause 4—if I correctly understand the intentions of the right hon. Member for Bromley and Chislehurst—is to impose a three-year time limit following the retirement or resignation from the NHS of a person who has been the subject of a complaint. In this context, that would apply to health service professionals employed by NHS trusts and other employing bodies.
An absolute time limit of three years would have some unfortunate effects. For example, if a complaint were made against a consultant surgeon more than three years after he ceased to be employed by the NHS, the health service commissioner would no longer be able to conduct an investigation. It cannot be right to impose such a constraint and so to limit the commissioner's ability to investigate the NHS organisation concerned.
Moreover, how would the limitation apply when several staff members of the NHS body concerned were involved in the matter leading to the complaint? Would the resignation of one staff member mean that the matter could not be investigated? The distinction between the individual and the body is, therefore, a very important one.
Section 9(4) of the Health Service Commissioners Act 1993 currently provides that the commissioner shall not entertain a complaint made more than a year after the day on which the complainant first had notice of the matter complained of. However, and very importantly, the commissioner has discretion to waive that limit when he considers it reasonable to do so.
I should also like to try to clarify a matter on which there has been repeated comment—the reference to the one-year limit and the discretion as "custom and practice". They are not custom and practice.
Section 9(4) makes it clear that the clock starts to run on the day on which the complainant discovers the problem. The complainant then has a year to raise the complaint with the commissioner, unless the commissioner thinks that it is reasonable to allow longer for it to be made. The second test provided in new clause 5 is that the commissioner must be satisfied that more than three years have not passed since the practitioner practised or the independent provider provided the services.
Therefore, the one-year limit and discretion are already clearly provided for in legislation and are not affected by whoever may currently be the commissioner.
The commissioner's discretion to waive the one-year limit allows him or her to continue to investigate complaints against an NHS body regardless of whether the person who is the subject of the complaint is still employed by the body. The limit that we propose in relation to practitioners and independent providers is three years from when they—the practitioner bodies, not their staff—cease to be involved in the NHS.
The Government feel that new clause 4 would impose unfortunate restrictions on the commissioner's remit to investigate complaints against NHS bodies. Although, at

first sight, the proposed time limit of three years for those bodies would parallel the time limit proposed by the family health services and independent providers, in practice, it would in my view inappropriately constrain the commissioner's discretion to conduct investigations. Therefore, I hope that the House will agree that it is not appropriate and should, therefore, be rejected.
The hon. Member for Westmorland and Lonsdale (Mr. Collins) asked what would happen if a practitioner were struck off. One of the Government's new clauses, which I shall speak to in a moment, purposely talks of ceasing to practice or provide. There should be simplicity in the commissioner's role, and it should be easy for people to use the facility. Therefore, although it may be an attractive proposition to extend the time limit in relation to those who are struck off, such provision would run counter to our objective of ensuring that simplicity. I may say more on that in speaking to later provisions on professional bodies and other remedies.

Mr. Hammond: Could the Minister clarify that last point? She said that the Government's new clause contained the phrase "ceased to practise or provide". I do not see that phrase in new clause 5. Perhaps we are speaking at cross-purposes.

Ms Stuart: Yes, it is when I come on to clause 5; I am taking clauses 4 and 5; it is clause 9(4) which makes that quite clear. Can I come back to that in a moment? I will come back in a moment to the phrase that we use. Government clause 4A and new clause 5 say that a person who is no longer—I am sorry; it is in clause 4. May I come back to that in a moment? I have got it in my notes. Can I move on to clause 5? The test is when the person concerned ceased to practise or provide health care. I may be able to give the hon. Gentleman the precise reference later.
On Second Reading and in Committee, I made it clear that the Government believe that it is inappropriate and unfair that family health service practitioners and independent providers who would be affected by the Bill should be subject to investigation by the health service commissioner indefinitely. That would be the effect of the Bill as it stands, because of the ombudsman's discretion to waive his one-year limit on bringing complaints. We have been committed from the outset to inserting a statutory limit on how long after the person concerned ceased permanently to be a practitioner or provider the ombudsman would be able to investigate a complaint. New clause 5 fulfils that commitment. I am afraid that I still cannot find the relevant passage to quote to the hon. Gentleman, but I shall come back to his point.
New clause 5 would impose a three-year limit after the cessation of practice or provision. Our aim is not to curtail unreasonably the ombudsman's powers to investigate retired GPs, but to reassure practitioners that, as in other areas such as civil litigation, their liability will at some point come to an end. We have consulted on the appropriate period to achieve that balance. There has to be sufficient scope for the ombudsman to exercise his discretion to waive his time limit. It quickly became clear that a year or 18 months would be too short a period. Several examples have been given of the time that it can take to bring complaints.
Let us suppose that someone goes to see their GP on the day before that GP retires. The GP, perhaps feeling a bit demob happy, does not ask many questions or examine the


patient as he had expected and tells him to go home and take two aspirins. Ten months later, it turns out that the patient has a condition that the GP, now retired, should have diagnosed at the outset. He makes a complaint to the GP's old practice, in accordance with NHS complaints procedures, but is dissatisfied with the outcome. A conciliation meeting follows, as part of the local resolution action, so the whole process takes about six weeks.
The patient then applies to the health authority for an independent review panel investigation, which, after due consideration, is granted. By the time that the panel has done its work and, submitted its report—this is an extreme example to illustrate the case—a further four months have passed, because the lay chairman was away on holiday for three weeks just after the panel hearing. By now, the GP has been retired for about 16 months.
The patient gets the report and, after thinking about it for a bit, goes on holiday. He then decides that he is still dissatisfied and approaches the ombudsman, nearly 18 months after the event about which he is complaining and the date when the GP retired. Strictly speaking, the ombudsman's one-year limit should come into play, but because of the circumstances, he may decide that it is appropriate to waive his limit in this case. Setting a time limit of one year on the investigation of retired GPs would restrict the ombudsman's power in a way that would be contrary to the spirit of the Bill, which was intended to close a loophole without restricting or significantly widening the powers available.
The key question is how long after the event the ombudsman might want to exercise his discretion. We thought that the most reasonable starting point would be to ask the ombudsman. He thought that three years would be a sensible compromise. The difficulties in conducting a meaningful investigation into something that happened much longer ago mean that he would be unlikely to want to exercise his discretion beyond that point. Interestingly, that coincided with some of the suggestions made by hon. Members on Second Reading. As it seemed likely to be acceptable to the majority of those with an interest in the issue, we have decided that three years is the appropriate period.
The right hon. Member for Wealden (Sir G. Johnson Smith) is seeking to plug a loophole that treats certain complainants unfairly. I have already made it clear in previous debates that I have considerable sympathy with his motives, and the Government have no wish to prevent him from succeeding. However, I have also made it clear that I have a responsibility to ensure that all those involved are treated fairly—those complained against, as well as the aggrieved complainants. I hope that he agrees that the new clause represents a reasonable compromise to achieve the necessary balance.

Mr. Hammond: Before she finishes her speech, will the Minister address the distinction in new clause 4 between practitioners who have been struck off and those who have resigned?

Ms Stuart: The purpose of the Bill is to close a loophole and we do not feel that that distinction would be helpful or would significantly add to the Bill. New clause 5 uses the words
the last day on which the person was a family health service provider.
We feel that that is the appropriate way forward.

Mr. Hammond: The purpose of the Bill is indeed to close a loophole and allow practitioners to be investigated

after they have retired from the service. The purpose of the Government's new clause is to limit the jeopardy of ordinary practitioners so that they do not retire with open-ended jeopardy. Does the Minister believe that the same protection should be afforded to practitioners who have been struck off for malpractice if another case of malpractice then comes to light? In new clause 4, my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) cleverly distinguished between practitioners who have been struck off and those who have merely resigned.

Ms Stuart: There are many other remedies available—from the General Medical Council, for example. We are trying to strike a fair balance, not to provide protection. We felt that the most appropriate test for the role of the ombudsman was to start the clock on
the last day on which the person was a family health service provider.
It is disingenuous to regard that as an attempt to protect people who have been struck off. We are trying to strike the right balance.

Mr. Miller: The spirit of the Bill is about enabling people to see justice done, not to gain pots of money. The fact that the practitioner has been struck off is the kind of justice that they would want, so the argument becomes academic.

Ms Stuart: Lawyers would call that a moot point.

Mr. Miller: Is my hon. Friend a lawyer as well?

Ms Stuart: My only defence is that I do not practise as a lawyer.
I urge hon. Members to see the new clause in the light of the purpose of the Bill and realise that the three-year limit is a fair one.
As for new clause 5, the right hon. Member for Wealden was seeking to plug a loophole whereby certain complainants were being treated unfairly. I have already made it clear in previous debates that I have considerable sympathy with his motives, and that the Government have no wish to prevent him from succeeding. However, I have also made it clear that I am responsible for ensuring that all those involved are treated fairly—those complained against, as well as the aggrieved complainant. I hope that he agrees that our provision is a reasonable compromise to ensure the necessary balance.
New clause 6 may have come as a surprise to some hon. Members, as the Government had not indicated their intention to table such an amendment. Indeed, it was the subject of considerable debate involving among others my hon. Friend the Member for Hendon (Mr. Dismore). I am sure that on reflection, however, they will have realised that the new clause is nothing more than a piece of minor housekeeping to avoid confusion and misinterpretation.
Most right hon. and hon. Members, particularly the lawyers among us, will be aware that it is not the normal practice of the House for amending legislation to be given retrospective effect. Indeed, we have a clear example of that in the legislation that we are considering today.
The sections of the Health Service Commissioners Act 1993 that would be affected by the Bill were inserted into it by the provisions of the Health Service Commissioners


Act 1996. The 1996 Act came into force on a specific date—1 April 1996—and had no retrospective effect on complaints that had already been turned down because they were out of jurisdiction when they were made.

Mr. Dismore: My hon. Friend probably misunderstood my criticism of the new clause. The new clause is retrospective in that it provides a potential future remedy for a problem that may have already occurred. The alternative suggestion is that the time limit should be from the date of the incident or from a date to be set when the Bill comes into force, thus avoiding retrospectivity, which the Government's new clause would create.

Ms Stuart: We have two lawyers and two opinions.

Angela Smith: Three opinions.

Ms Stuart: That is known as synergy. Nevertheless, I hope that, on reflection, my hon. Friend the Member for Hendon will agree with our proposal.
Unfortunately, the lack of retrospectivity was not made explicit in the 1996 Act. As a result of that failure, significant numbers of complainants contacted the ombudsman once the new jurisdiction became known, either seeking to have earlier complaints re-examined, or making complaints about matters that pre-dated the extension of his remit. In his annual report for 1996-97, the ombudsman said:
These premature approaches to the Commissioner and misunderstanding about the new NHS complaints procedures account for much of the increase in the number of complaints received in 1996–97… In summary, although I received more complaints in 1996–97 than in previous years, the percentage which I could investigate was lower…the significant increase in complaints received and the decrease in the proportion I could investigate caused an imbalance in the workload between my screening and investigation departments.
Not only did the provisions raise inappropriate expectations, they had a detrimental effect on the ombudsman's office.
It therefore seems only common sense that the Bill should seek to avoid similar problems. Although there are relatively few cases in which the ombudsman has been constrained by the current wording of the relevant sections of the 1996 Act, it nevertheless seems wise to avoid any possibility of doubt by making it explicit in the Bill that those cases cannot be re-opened as a result of the Bill. I hope that the right hon. Member for Wealden will agree that our proposals are a sensible precautionary measure that he can support.
11.45 am
I now turn to new clause 7, tabled by my hon. Friend the Member for Hendon. As I emphasised on Second Reading and in Committee, the Government are persuaded that the loophole concerning family health service practitioners and independent providers that was exposed by the right hon. Member for Wealden should be closed. However, the new clause would once more seek to address time limits for complaints against health service bodies, so I do not consider it appropriate.

Mr. Hammond: As the Minister has just referred to family health service practitioners, will she take the

opportunity to answer my question: does that phrase in this context include providers of general medical services and personal medical services?

Ms Stuart: As far as I am aware, the definition of a family health service provider relates to the person providing the service and their relationship with the national health service. It is not based on a precise definition of the service, but on the relationship with the national health service. However, I am happy to come back to the hon. Gentleman on that.
New clause 7 would bring the limitation period for the health service commissioner's investigations into line with the process of clinical negligence actions. At first sight, it would appear to make a neat parallel between the provisions for the commissioner to investigate complaints and the timetable for carrying out civil actions, but further examination shows that, in practice, this apparently sensible provision would create a number of difficulties. My hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller) made the important point that people want a sense of fairness and an explanation of what happened.
The limitation period for actions for personal injury set out in section 11 of the Limitations Act 1980 is three years after the date of the event giving rise to the action, or three years after the date when the injured person became aware of the cause of the action, if that date was later. However, the court also has powers to disregard the limitation period when it considers it equitable to do so. Therefore, the new clause will not introduce a simple rule of thumb of three years, but instead—and most unfortunately—it would create a complex and unclear period of limitation.
I should like to make a further point with regard to the distinction between the investigation of complaints under NHS procedures and the pursuit of legal claims. The Government believe that providing a clear and logical set of procedures for patients to complain about their treatment under the NHS if they wish to do so is vital. To achieve that, we must retain a clear distinction between the parallel processes of pursuing a legal remedy through the courts and the complaints procedures in the NHS. The new clause would tend to confuse those two quite distinct processes in the minds of patients, so it would be completely unhelpful. Those comments are also pertinent and relevant to my unwillingness to entertain the notion that there should be a different limit for providers who have been struck off. We seek simplicity and I hope that the right hon. Member for Wealden will agree that the new clause does not provide a clear way forward and therefore should be rejected.

Sir Geoffrey Johnson Smith: I never cease to be amazed by the ingenuity of right hon. and hon. Members in taking over a Bill and spending so much of their agile minds in advancing strong cases for improvements that were not really meant to be part of the legislation. I admire and respect them for it.
I am a very simple man when it comes to the Bill, although on matters such as defence, I can get very complicated. In this respect, I confirm that the Minister is quite correct in interpreting my motives. I was struck by the fact that there was a loophole that allowed GPs to retire to avoid investigation by the health service ombudsman. It seemed fair enough to try to close that loophole.
The various points made by right hon. and hon. Members have struck a chord with me. I have little doubt that such matters require attention. However, I hope that they will understand me when I say that the Minister has interpreted my motives correctly. Therefore, it will come as no surprise to her or to the House that I agree with what she has proposed.
Of course I recognise that other matters can and should be raised, which have come up in this debate and might be the subject of future legislation. I understand that the Government are reviewing the work of the public services ombudsman, so I hope that when these matters come before the House, the Government will take into account the proposals in the new clauses. However, for the reasons that the hon. Lady gave, I do not think that they should form part of this Bill. No doubt they will appear in future legislation.
Quite simply, the loophole should be closed. Therefore, I hope that the Government's new clauses will be accepted by the House. I am most grateful for the attention that people have given the Bill.

Mr. Forth: I am very conscious of what my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) has said. It is interesting that this is, by any account, a non-controversial Bill—indeed, that term was used by no less eminent a person than the Leader of the House yesterday during business questions. Yet we have justified the process by which this non-controversial Bill has received detailed attention on Report, as a result of new clauses being tabled by the Government and by a Government supporter, and very productively, too. The Bill's promoter has just supported that view.
This is something to which we might return very early next week as an argument. Who knows? I am simply putting down a marker and illustrating the point in a way that may be of interest to the House on Monday.
I listened carefully to what the Minister said. I am not sure that we have yet had an answer to the question asked by my hon. Friend the Member for Runnymede and Weybridge (Mr. Hammond) about family health service providers.

Ms Stuart: May I refer the right hon. Gentleman to new clause 5? Proposed new subsection (4A) of section 9 of the Health Commissioners Act 1993 refers to family health service providers and proposed new subsection (4B) also refers to independent providers. Those proposals will cover both family health practitioners and providers of personal medical services.

Mr. Forth: It is important that we clarify these matters, and I am grateful to the Minister for taking the opportunity to do so. The value of the process is that it allows us to clarify matters, and gives the Minister the opportunity to put things on the record. It is a proper use of the time and the procedures of the House.
The Minister took time and care, as ever, to explain why she thought that my new clause was defective. I accept her arguments in the terms in which she made them. It was obvious that flaws were emerging during the exchange of views when I was speaking to my new clause. I readily accept that. I will, for the moment, go along with my right hon. Friend's recommendation that we accept new clauses 5 and 6, but with one reservation.

I still believe that we have not yet had an answer to the point about struck-off practitioners, initially made by my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) and reinforced by my hon. Friend the Member for Runnymede and Weybridge. I do not think that it would be appropriate or fruitful to pursue the matter further at this stage, but those in another place might want to consider it, building on what has been said here and taking account of the Minister's comments, to see whether the Bill could be yet further improved before completing its inevitable—I trust—passage through all its stages to ultimate Royal Assent. That would also be a very proper use of the parliamentary process. The House considers the Bill, it is then looked at in detail in another place and amended or improved where necessary.
Today's debate has been useful. I have felt honoured to have played my little part in what we have so far done to the Bill. Goodness knows, there is still a little bit to go. However, I would not want to delay the House any further at this stage. On that basis, with these brief remarks, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 5

REQUIREMENTS TO BE COMPLIED WITH

'. In section 9 of the Health Service Commissioners Act 1993 (requirements to be complied with), after subsection (4) there is inserted—
(4A) In the case of a complaint against a person who is no longer of a description set out in section 2A(1) or (2), but was of such a description at the time of the action complained of, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was a family health service provider.
(4B) In the case of a complaint against a person falling within section 2B(1) or (2) in relation to whom there are no longer any such arrangements as are mentioned there, the Commissioner shall not entertain the complaint if it is made more than three years after the last day on which the person was an independent provider."'.—[Ms Stuart.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 6

TRANSITIONAL PROVISION

'. Where before the coming into force of this Act a complaint has been made to a Health Service Commissioner which he has declined to entertain on the ground that the person complained against—

(a) was no longer of a description set out in section 2A(1) or (2) of the Health Service Commissioners Act 1993, or
(b) no longer fell within section 2B(1) or (2) of that Act,

the amendments made by this Act do not enable that complaint to be revived, or a new complaint arising out of the same matters to be entertained.'.—[Ms Stuart.]

Brought up, read the First and Second time, and added to the Bill.

Clause 1

PERSONS SUBJECT TO INVESTIGATION

Mr. Dismore: I beg to move amendment No. 12, in page 1, line 20, at end insert—
'(4) In section 3 (general remit of Commissioners)—



(a) at the end of subsection (1) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"
(b) at the end of subsection (1A) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint;"
(c) at the end of subsection (1C) insert "or, in the event that the person the subject of the complaint has retired or resigned from the National Health Service, refer the complaint to the professional body of the registered medical practitioner, dentist or nurse who is the subject of the complaint".'.


The amendment would half plug a consequential loophole. Section 3(1) of the Health Service Commissioners Act 1993 states:
On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship…the Commissioner may, subject to the provisions of this Act, investigate the alleged failure or other action.
There is then a cross-reference to subsection (1A) of section 15, which states that where in the course of an investigation a commissioner comes across something that is
likely to constitute a threat to the health or safety or patients…the Commissioner may disclose the information to any persons to whom he thinks it should be disclosed…
That could be the professional bodies, for example.
The problem is what would happen if the commissioner decided not to conduct an investigation. My amendment would deal with that problem, so that if the commissioner decided not to conduct an investigation into someone who had retired or resigned from the health service, he would still be able to refer the matter to the professional body. At present, he cannot do that.
12 noon
That matter was highlighted by the health service ombudsman in his annual report for 1998–99, paragraph 4.6 of which stated:
During 1998–99 there were other occasions in which complaints to me raised issues which I thought it appropriate to pass to the regulatory body concerned, because there was a possible risk to the health or safety of patients. However, the effect of the wording of the legislation governing my role is to restrict the circumstances in which I can pass such information to another organisation, such as the GMC or the Commission for Health Improvement. For example, I cannot disclose information to another organisation if I decide not to investigate the complaint, or if the matter of concern falls to be disclosed in one of my reports.
That relates to the reference I made to the relationship between sections 13 and 15 of the principal Act.
The report continued:
As a result, paradoxically, I have less scope to bring concerns to the GMC, for example, than a private citizen has. And my medical and nursing advisers are in a potentially invidious position if they consider that they have a professional duty to act on concerns arising from their scrutiny of a complaint to me.
The ombudsman states that he told the Government and the Select Committee on Health about that problem, and proposed that his powers should be widened to deal with that loophole. That is what my amendment tries to do. Paragraph 4.7 of the report stated:

I am pleased to report that in March 1999, in response to an amendment to the Health Bill tabled in the House of Lords by Lord Harris of Haringey…the Government agreed to consider proposing an amendment which would have the effect that I, and the regulatory bodies, were looking for. That would make it more possible for my office to play its part in developing effective working communication with other clinical governance organisations.
The measure offers an opportunity to plug that loophole.
I tried to table a more general amendment that would have affected all investigations—or rather non-investigations—but, unfortunately, it was not selected. The selected amendment deals with the position when a registered medical practitioner has retired or resigned from the NHS. However, that was a sensible selection, because we know from the statistics for 1998–99 that there were 2,869 complaints to the ombudsman, but only 119 investigations. Of those, 62—about half—involved a clinical complaint. One can thus extrapolate that, pro rata, probably 1,500 medical issues were referred to the ombudsman in 1998–99. The number is even greater in 1999–2000, when the ombudsman estimates that he will receive 3,450 complaints and will conduct 150 investigations.
The problem is that we could end up with about 3,500 complaints that are not investigated and with which the ombudsman can do nothing else. If half those involve clinical issues, the ombudsman might like the opportunity to refer them on to the General Medical Council or whoever for action—as he says in his report—even if he decides not to conduct a formal investigation himself.
The circumstances in which that is likely to arise may well be when a practitioner has retired or resigned from the health service. Under the Bill, the ombudsman would be entitled to look at a complaint, but he might think that, as the person had retired or resigned and would not be going back into practice, there would be little point in his spending a lot of time and money making one of his 150 investigations into that case. However, he might decide that the GMC should be aware of the matter, in case the person tried to do locum work, for example. It would not be worth devoting the ombudsman's resources to the problem, but the GMC should be made aware of it.
At present, the ombudsman could do nothing about such a case, as he pointed out in his report. His staff are put in a difficult position, because his medical advisers might want to take action, but could not do so. My simple amendment would deal with that problem.
The amendment is in three parts, because that is how the original legislation was drafted. It would be a worthy addition; it would half plug a loophole that would emerge as a result of the Bill.

Ms Stuart: When the complaints procedure was set up in 1996, the clear intention was that it should be completely separate from disciplinary procedures. The prime aim of the ombudsman procedure is to resolve problems and satisfy the concerns of the complainant, while being fair to all those who are the subject of a complaint.
The amendment proposed by my hon. Friend the Member for Hendon (Mr. Dismore) would give the health service commissioner the statutory provision to refer a complaint made to him to the disciplinary bodies of doctors, dentists and nurses, subject to section 15 of the Health Service Commissioners Act 1993.
It has been suggested that the commissioner might not already have that power, but it is clear that he is able to disclose information to regulatory bodies about any person who is likely to constitute a threat to the professional bodies. He is not as powerless as has been suggested. The commissioner has suggested to my officials that he thinks that the onus should be on the complainant to disclose such information. He therefore does not require such statutory powers.
Although an argument could yet again be made to widen the Bill's remit, that would substantially detract from its original and precise intention of plugging a specific loophole. I shall not go into detail on the confusions and ambiguities that the amendment might create, but would simply point out that it does not accord with either the current complaints policy or the wishes of the health service commissioner. It should therefore be rejected.

Mr. Dismore: May I put an additional point to my hon. Friend? I quoted from the ombudsman's report in which he suggested that the Government had agreed to consider proposing such an amendment. I fully understand the argument that my amendment may be premature and that it should deal with all complaints and not just those against people who have retired or resigned from the health service. However bearing in mind the assurance that was given to the ombudsman, is my hon. Friend saying that, in future, such an amendment will not be made to the legislation relating to the commissioner? Or is she saying that, in accordance with the assurance previously given, such an amendment will be proposed?

Ms Stuart: I am sure that my hon. Friend is aware that a review of the roles of all the ombudsmen is currently being carried out by the Cabinet Office, and I do not wish to pre-empt the outcome of that. I am saying that, within the specific purpose of this Bill, I do not think that the amendment is appropriate. It is for that reason, rather than on the basis of the merits of the case itself, that I suggest that we reject the amendment.

Mr. Dismore: Now that I have listened to my hon. Friend, and since my proposal was something of a probing amendment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2

SHORT TITLE AND COMMENCEMENT

Amendment proposed: No. 11, in page 1, line 24, at end insert—
'( ) This Act does not extend to Northern Ireland.'.—[Ms Stuart.]

Mr. Forth: I should have thought that the Minister might want to give the House a short explanation of the amendment. She might have wanted to argue that the Act will not extend to Northern Ireland because some form of devolved arrangements will be in place there; I do not know. If that were the case, one could understand the amendment on a strictly constitutional basis. However, it is a risk to suggest that, by the time the Bill receives Royal Assent, everything in Northern Ireland will be as the Government and the rest of us would like it to be. I am not convinced that that is the appropriate way to proceed.
That is one argument that I can imagine the Minister wanting to make had she sought to explain the amendment to the House. As it is, we are left floundering and guessing, so I shall just have to flounder and guess a little bit more to see whether we can work out for ourselves why the hon. Lady might not want the Bill to extend to Northern Ireland. Either we shall be told that the issue can be dealt with adequately by the devolved arrangements that the Government hope will be in place in Northern Ireland or—this is a less likely explanation—that institutional arrangements, the relationships between patients and practitioners and the remit of the health commissioners differ sufficiently in Northern Ireland for it to be appropriate to disapply the provisions of the Bill there.
If the latter explanation is correct, we need from the Minister a reassurance and a little detail about whether she is satisfied—and whether we and, more importantly, my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) should be satisfied—that sufficiently similar provisions already apply in Northern Ireland for it not to need the benefit of the Bill. That is the only other explanation that I can think of.
Several possibilities exist, and the House deserves and requires an explanation from the Minister as to why we should accept amendment No. 11.

Mr. Hammond: I suspect that the Minister's explanation may be that the 1993 Act extends only to England, Wales and Scotland. In that case, why is the Government amendment necessary? My right hon. Friend's Bill contains only amendments to the 1993 Act. I am not a lawyer, although there are lawyers in the Chamber who may wish to contribute to our short debate and give us the benefit of their possibly superior knowledge on the subject. It seems to me that if a Bill is restricted to making amendments to an Act of limited geographical scope, including that geographical limitation in it is entirely redundant. Unless hon. Members who understand such matters better than I do can explain what the Government amendment adds to the Bill, I urge the Minister to withdraw it and keep the Bill as short as possible.

Mr. David Stewart: With your permission, Mr. Deputy Speaker, I should like to extend our debate slightly and examine the position in Scotland. I understand that the 1993 Act and the Health Service Commissioners (Amendment) Act 1996 apply to Scotland. I support the Bill. Has my hon. Friend the Minister had discussions with the Scottish Executive on powers to introduce the measure in Scotland so that the legislative gap is covered there as well?

Mr. Deputy Speaker: Order. Perhaps the hon. Gentleman and the Minister could discuss that privately. We are discussing an amendment about Northern Ireland.

Mr. Miller: I took the Government amendment to be an innocent, tidying-up amendment until I heard the speech of the right hon. Member for Bromley and


Chislehurst (Mr. Forth), which made me look at section 22 of the 1993 Act, which deals with the Act's extent and commencement. It states:
The following provisions of this Act extend to Northern Ireland—(a) sections 11, 12, 13, 14(5), 15, 16 and this section.
Curiously, section 11 deals with the process of investigation, raising an interesting question about why the Bill, which deals with aspects of that process, does not include Northern Ireland. That is somewhat contradictory, although there may be a logical explanation for it. It is clear, by omission, that sections 1 to 10 and 17 to 21 of the 1993 Act do not apply to Northern Ireland. That is also true of some of the Act's schedules.
There is therefore conflicting evidence. Section 11 of the 1993 Act, which deals with the procedure on investigations, is relevant to Northern Ireland, as is section 12, which deals with evidence. I accept that section 13 may not be, as it deals with obstruction and contempt. No doubt those who are more expert than me, and certainly some of my legal friends, may tell me that procedures in Northern Ireland are different. Part of section 14, which deals with reports, is also relevant.
I understand why those provisions are extended to Northern Ireland. The Bill deals with persons subject to investigation. Why, therefore, is there a contradiction? The person subject to investigation would not be covered by Northern Ireland legislation, but the investigation itself would be. That needs some explanation. I would be grateful if my hon. Friend the Minister clarified the matter.
As the right hon. Member for Bromley and Chislehurst rightly said, if there is a mechanism to deal with the matter in the devolved process, which we all hope will be up and running in its intended fashion very soon, other parts of the Bill will presumably require amendment and passing on to our colleagues in Northern Ireland. In the interim, I suppose that such aspects fall within the Secretary of State's ambit. I am sure that it would be extremely helpful to our friends in Northern Ireland if we clarified that minor contradiction, so that it did not seem that we were merely ignoring the relevance of health service issues in the Province.

Ms Stuart: This debate has been a clear illustration of the fact that nothing is ever as straightforward as it appears. I would hate to see the right hon. Member for Bromley and Chislehurst (Mr. Forth) floundering and guessing. I hope that I can enlighten him.
It is important to remember that Northern Ireland has its own complaints commissioner, who is governed by separate legislation. It is therefore clear that a Bill that seeks to amend Acts in England, Wales and Scotland does not extend to that commissioner. It is simply because of the potential for confusion that we contacted the Northern Ireland Departmental Solicitors Office for advice. It wished us to make specific mention to make it absolutely clear that the amended legislation would not apply to Northern Ireland. As I said, its commissioner is governed by different rules.
To refer quickly to Scotland, we have referred the matter to the Scottish Executive, which has referred to the Scottish Parliament the issue of amending the Act in relation to Scotland, as is right and proper.
The purpose of the Bill is to close a loophole as satisfactorily and tidily as possible. We felt that the amendment would make the Bill's remit absolutely clear.

Mr. Hammond: Will the Minister clarify whether there is a Northern Ireland health service commissioner who was established under the 1993 Act but is distinct from the commissioner about whom we have been talking? If that is so, why is she of the view that he should not have the additional powers that we are granting the commissioner for England?

Ms Stuart: The important point is that Northern Ireland has its own complaints commissioner who is governed by separate legislation. He is therefore outside the Bill's remit. It was simply for clarity's sake that we restated in the amendment that the amended legislation will not apply to legislation governing his powers.

Mr. Hammond: I am grateful to the Minister for clarifying that. That takes us back to my initial remark that the issue is one of redundancy. I am very surprised by what the Minister has said. Although I understand that it does not do any harm to include such an additional subsection merely, as lawyers would put it, for the avoidance of doubt, my understanding from my short period in the House has been that economy is the watchword and that parliamentary draftsmen will always seek to exclude anything that is not absolutely necessary. The proposed additional wording is not absolutely necessary for legal minds clearly and unambiguously to interpret the Bill's scope.

Ms Stuart: Because parts of the 1993 Act refer to Northern Ireland, it was essential to clarify the matter. The debate showed that it was unclear in the minds of some hon. Members. If a simple amendment can make the matter clear, no harm is done and we should pass it.

Amendment agreed to.

Title

Mr. Dismore: I beg to move amendment No. 17, in title, at end add
'to extend the provisions of the Act to persons who have retired or resigned from the National Health Service; and for related purposes.'.
The amendment seeks to change the long title of the Bill because the present long title is extremely confusing. On Second Reading, when you were in the Chair, Mr. Deputy Speaker, I tried to make a detailed speech about the problems relating to the NHS commissioners. Two or three times, you told me off for straying beyond the scope of the Bill. You said
The Bill before us is a very narrow piece of proposed legislation, and it is determined by its title and by its contents. The hon. Gentleman—
that is a reference to me—
is looking at matters that could be amended at another time, and I remind him that we can consider only what is before us this morning.
From time to time during the rest of the debate, I strayed a little, and you pulled me up again.

Mr. Deputy Speaker: Order. As I recall, I showed great restraint that day.

Mr. Dismore: I am sure that you did, Mr. Deputy Speaker. I would not question that. I took to heart your words:


The hon. Gentleman is looking at matters that could be amended at another time—[Official Report, 3 March 2000; Vol. 345, c. 682.]
I spent a happy evening last week drafting a raft of amendments, but the Bill is tightly drawn and it was difficult to draft amendments to it, especially as the original legislation has been amended. Trying to work through all the cross-references and cross-checks was an extremely difficult job, even though I had a consolidated version of the Bill, pulled off Lexis. I probably have the only copy in the entire House, and ended up lending it to the Table Office so that officials there could check the amendments.
I tabled a great list of amendments to try to improve the Bill, and the following day I received a letter from Mr. Priestley, the Clerk in charge of private Members' Bills, whose patience I have also sorely tested over the past two weeks, and who has been very helpful in advising me about the scope of the Bill.
In a letter to me, Mr. Priestley states:
I am writing because I think I should draw to your attention the fact that, notwithstanding its broadly drawn long title—
which I seek to amend—
the Health Service Commissioners (Amendment) Bill is a Bill with a single, narrow purpose. This means that the scope for amendment of the Bill is very limited indeed.
Mr. Priestley goes on to state that he does not wish to pre-empt the Speaker's exercise of her power to select amendments for debate, and he continues:
I think it only fair to tell you that, having looked carefully at your amendments…they all appear to relate to matters outside the scope of the Bill.
I was rather peeved about that, Mr. Deputy Speaker, because I thought that I had been following your advice in drafting those amendments and had spent some time doing so, as I had done when preparing my speech for the Second Reading debate, based on my understanding of the content of the Bill from the long title. That is why I believe that the long title needs amending; it is very misleading.
With Mr. Priestley's assistance, I consulted "Erskine May" about the scope of a Bill. It states:
Amendments to the preamble and the title are also admissible where amendments have been made to the bill which render them necessary.
We have made some amendments to the Bill today which make the amendment of the long title necessary. I propose that it should refer to the retirement or resignation from the NHS of the practitioner, "and for related purposes". We have dealt with a few of those matters today.
"Erskine May" goes on:
An amendment is out of order if it is irrelevant to the subject matter or beyond the scope of the bill.
It also states in paragraph (5) on page 526:
Where the scope of a bill is very restricted, the extent to which it may be amended at all may thus be severely limited.
Fair enough.
I asked Mr. Priestley where in "Erskine May" the scope of a Bill is defined. He flipped through many hundreds of pages and the index but, believe it or not, nowhere is the scope of a Bill defined.

Mr. Deputy Speaker: Order. The background material is very interesting and it describes the way in which

the hon. Gentleman arrived at the amendment. However, now that the amendment has been selected, he should speak about it, not the reasons for tabling it.

Mr. Dismore: I was told that drafting an amendment to the long title would be a way round the problem. I did that in amendment No. 18, which was not selected. I did not realise that I could speak only to amendment No. 17.
Drafting amendments that were within the scope of the Bill was difficult when the long title was so misleading. To try to ensure that the amendments—

Mr. Deputy Speaker: Order. As I said earlier, we cannot debate amendments that were not selected. However, Madam Speaker has selected amendment No. 17. That allows the hon. Gentleman not only to move the amendment, but to speak about it. He must confine himself to amendment No. 17.

Mr. Dismore: I referred to amendment No. 18 in parenthesis to explain the reasons for drafting amendment No. 17 in the way in which it appears on the amendment paper.

Mr. Deputy Speaker: Order. I do not like interrupting hon. Members' speeches; I want the hon. Gentleman to speak about amendment No. 17. He has finished with stories about the Public Bill Office.

Mr. Dismore: That is a pity, because they are entertaining. Never mind, perhaps I can tell you them in the Tea Room some time, Mr. Deputy Speaker.
The long title of the Bill is broad and has been misleading when we tried to debate the Bill on Second Reading, in Committee and today. The amendment would tackle that flaw. I hope that the Bill will receive a Third Reading today, and move to another place. As the right hon. Member for Bromley and Chislehurst (Mr. Forth) said, those in another place may wish to table amendments. I should hate them to go through the same palaver as me, and find that they were drafting amendments that were out of order because they were misled about the scope of the Bill by a broad long title.
If we could amend the long title
to extend the provisions of the Act to persons who have retired or resigned from the National Health Service; and for related purposes,
it would help to clarify the Bill's purpose. It would make the long title match the scope of the Bill. Standing Orders state that that should be done for Government Bills, but private Members' Bills are an exception to the rule. They are often tabled with a very long title before the detailed text becomes known. Government Bills are caught by Standing Orders, which require a change when necessary to the long title, but private Members' Bills are not.
In the light of the difficulties that I experienced, I believed that it would be worth while to amend the long title to reflect the contents of the Bill more accurately. That would enable those in another place—and the public, if the measure is enacted—to understand the Bill's purpose and not assume that it is about something different. That is how I got into difficulties.

Mr. Hammond: I am fascinated by the hon. Gentleman's case. By extending the long title, I am not


sure whether he is aiming to expand or restrict the scope of the Bill. The extension of the long title for which the amendment provides would reduce the scope of the Bill.

Mr. Dismore: The amendment would do neither. I am simply trying to make the long title reflect the scope of the Bill. The long title is broader than the scope of the Bill. You have made it clear, Mr. Deputy Speaker, as have other hon. Members, that the scope of the Bill is narrow. It covers only bringing within the scope of the Health Service Commissioners Act 1993 people who have retired or resigned from the NHS. The right hon. Member for Wealden (Sir G. Johnson Smith) confirmed that on Second Reading. He repeated that this morning. If that is the case, the long title should reflect the Bill's objective.
The amendment would not restrict the Bill; it tries to mirror the Bill's contents and thus make its purpose clearer. I hope that the right hon. Gentleman will accept the amendment, which will make matters easier for people who consider the Bill later.

Mr. Forth: The hon. Member for Hendon (Mr. Dismore) has done the House a great service, because such matters often confuse people, including myself. One might have thought that a Bill
To Amend the Health Service Commissioners Act 1993
would give enormous scope to do just that and that, if it were taken literally, there would be ample opportunity to achieve many different things. However, he has found out that that is not the case. The scope of the Bill as defined on Second Reading by its promoter, my right hon. Friend the Member for Wealden (Sir G. Johnson Smith), turns out to be narrow. There is a difference between what the title says and what the Bill means.

Mr. Dismore: It is interesting that the right hon. Gentleman draws that conclusion, but I do not think that that is the case. The problem is that "Erskine May" does not define the term "scope of the Bill". Contrary to what he says, I was given to understand that the Bill's long title and text, not what the promoter may say it is, constitute its scope.

Mr. Forth: Ironically, I am grateful to the hon. Gentleman for that intervention. Perhaps a ruling on such matters would help us all because, so long as this confusion remains, there is a risk that many people will waste a lot of time going up blind alleys, and that would not be at all productive.

Mr. Dismore: I thank the right hon. Gentleman for making that point. I tried to find out whether such a ruling had been given, as the House works on precedent. The only one that I could find on a long title's relevance to a Bill's content was made in 1960; no other could be found. Perhaps custom and practice rather than precedent governs our proceedings.

Mr. Forth: Indeed. I am sure that you, Mr. Deputy Speaker—listening, as ever, with your keen ear and watching with your eagle eye—may think on reflection, perhaps after consulting Madam Speaker and your

colleagues, that it would be helpful to guide the House on the matter. Perhaps a statement could be made from the Chair. I accept what the hon. Gentleman says, but if, unusually, there is no explicit guidance in "Erskine May", and if the last time that an utterance was made on the matter was as long ago as 1960, there is a danger of unnecessary confusion arising between the Bill's short and long titles, its content and what the promoter may say on Second Reading. That should be cleared up for the benefit of us all.

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. A ruling was made, with which the Chair is entirely satisfied. I suggest that the right hon. Gentleman discuss the amendment.

Mr. Forth: I shall seek out that ruling shortly, Mr. Deputy Speaker.
All in all, I find the hon. Gentleman's remarks persuasive. It strikes me that amendment No. 17 would be helpful, if only for the sake of consistency. That may be useful, given that the Bill may have to be considered in the other place as a result of this morning's positive and useful debate. Unless I am persuaded otherwise, I am inclined to support the amendment.

Ms Stuart: The amendment would add to the Bill's title and extend it to cover those who have left the NHS either by resignation or on retirement and, to quote the amendment, "for related purposes." The Government have made it clear that the Health Service Commissioners (Amendment) Act 1996 and our proposed amendments cover the required ground.
We acknowledge the importance of properly protecting the interests of patients and the public by enabling the health service commissioner to investigate complaints against NHS providers thoroughly and properly. However, the helpful and instructive Bill introduced by the right hon. Member for Wealden (Sir G. Johnson Smith) will fill the gap that he identified in respect of the family health service practitioners and independent contractors.
Although there is no opposition in principle to clarifying the long title, the amendment does not accurately reflect the Bill's intended purpose and would produce confusion. Had an amendment been tabled to reword the long title so that it was more accurate, it could have been considered. The clear purpose of the Bill is to close a loophole, and the title states that clearly. I fail to see how the amendment would be helpful.

Mr. Dismore: My hon. Friend has left me in a quandary. In the debates on Second Reading and today, the assumption has been that the Bill does precisely what my amendment to the long title states that it does. If my hon. Friend is saying that the Bill does other things that are not covered by my amendment to the long title, could she specify what they are? I could then be sure that, if those in the other place want to produce another amendment to change the long title to make it accurately reflect the scope of the Bill, they will have some guidance from the Minister as to how they should word it.

Ms Stuart: In the previous debate, it was considered that amendments should be made, and legislation should


be amended, to be helpful. We believe that the title of the Bill as it stands accurately, clearly and precisely reflects the scope of the Bill. We are not convinced that the insertion of "for related purposes" adds clarity. Accordingly, we recommend that the amendment should be rejected. It does not bring greater clarity to the proceedings.

Mr. Dismore: I am unconvinced by my hon. Friend's answer to that point. It is still not clear to me in what respect my amendment is defective. I do not intend to press it to a vote because we want to get on to Third Reading and give the Bill a fair passage. I hope that the issue can be considered in the other place.

Mr. Deputy Speaker: Is the hon. Gentleman seeking the leave of the House to withdraw his amendment?

Mr. Dismore: I beg to ask leave to withdraw the amendment. In doing so, I echo the words of the right hon. Member for Bromley and Chislehurst (Mr. Forth) that at a future date we need more guidance on the definition of the scope of a Bill.

Mr. Deputy Speaker: Order. That is an otiose comment in view of the fact that the Chair has given a ruling, and it is unnecessary for that ruling to be repeated. It was quite clear and specific.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Sir Geoffrey Johnson Smith: I beg to move, That the Bill be now read the Third time.
I do not want to detain the House. I am grateful to all those who have taken part in the debate, and most especially to the Minister for the trouble that she and her staff have taken over a modest Bill, but one of considerable significance.
One of the lessons that we have learned from the debate is that other, related issues need to be tackled. I understand that there will be a wider review of the role of the ombudsman, which will embrace the different ombudsmen who help to remedy injustice and provide a fair, level playing field between those who make complaints and those who are complained against. I hope that the Bill will continue to have support on Third Reading, and that it will be a success when it goes to the other House.

Angela Smith: As a sponsor of the Bill, I should like to make a few brief comments, although I shall not repeat what was said on Second Reading. I congratulate the right hon. Member for Wealden (Sir G. Johnson Smith) on his wisdom in choosing this subject for his Bill. I also thank the Government for their support and consideration, which has been helpful.
The Bill has limited scope, but it is welcome. The right hon. Gentleman may have been surprised by the number of amendments that have been tabled today after such a swift 13-minute Committee stage. We are grateful that many of those amendments have been withdrawn.
I have little to add to the comments that I made on Second Reading, except to stress the aspect of the Bill that will allow commissioners to investigate the actions of a private practitioner who has provided treatment to an NHS patient under contract to a health service body, such as a health authority or an NHS trust, even if that practitioner no longer treats patients under such a contract.
The Bill is about accountability and faith: faith in doctors and faith in the system. It closes the loophole that allows a person under investigation to retire from the NHS to take up private practice so as to escape that investigation. That loophole does the medical profession a disservice. I was disappointed to read in Pulse magazine that a GP had declared that the Bill was
more about revenge than justice.
I am pleased that many doctors have distanced themselves from that comment. Indeed, the health service commissioner has given the Bill his support.
The Medical Defence Union has put its comments on record by lodging them with the House of Commons Library. According to the MDU, the health service commissioner already has
the power to impose sanctions if he considers that a GP has not responded to a complaint correctly. For example, he may choose to "name and shame" the doctor concerned.
That is inadequate. It is not good enough, and that is why the Bill has had to be presented.
A constituent of mine who has fallen foul of the existing legislation will welcome this Bill. I am sure that he will also say that the MDU's response to it is not good enough. In his case, when a doctor did not respond to a complaint, all that happened was an extension of the time allowed for a response. I think that, at a later stage, we should consider how long investigations take. Sometimes our constituents feel that there is undue delay, increasing the agony that they experience at difficult times.
The MDU says:
The MDU does believe that currently if a doctor retires before a complaint has been fully investigated that is almost certainly coincidental.
I am sorry, but I do not share that view. It may be coincidental in some cases, but certainly that does not apply to all cases. If it did, there would be no opposition to the Bill, no doctor would deliberately retire for such reasons, and no one would complain about being investigated after retirement.
I stress that no hon. Member has been "anti-doctor". I am sorry that some people have seen the Bill in that light. My local branch of the British Medical Association has been here twice for dinner—there are annual receptions—and, although I think that the Bill will be needed in only a tiny number of cases, I know that the BMA welcomes it.
A change in the law is needed for those few cases—cases of which we all know from our constituency surgeries. It is necessary in order to maintain—or reinstate, where it has been lost—public confidence in the medical profession, and I am pleased that we have been given the opportunity to support it.

Mr. Forth: The Bill is a good, perhaps even a model, example of a private Member's Bill. My right hon. Friend the Member for Wealden (Sir G. Johnson Smith) deserves enormous credit for the skill with which he identified the


need for such legislation, consulted about it and put it together. The Bill's scope is modest, but its potential and, I suspect, actual impact on those whom we are here to serve are significant. Moreover, my right hon. Friend, with his usual courtesy and skill, has drawn on his considerable experience in guiding the Bill through its stages.
Let me say to the hon. Member for Basildon (Angela Smith) that I would have thought the reason why the Committee stage was so remarkably short—at least, I hope that this was the reason—was that, while the Minister accepted that there was further work to be done, she and the Government were not yet in a position to give the Committee guidance. The Committee was prepared to accept that, on the understanding—I think—that the matter could be properly dealt with here, on Report. That is indeed the way in which things have worked out—and they have worked out very well, in a co-operative spirit.
Our debate has demonstrated a number of things, including the wisdom of private Members' Bills being modest in scope, and the value that should be attached not only to the opportunities that arise in Committee in normal circumstances, but to the opportunity that legitimately arises on Report to consider a Bill further and, if necessary, improve it. My right hon. Friend can take great pride in what he is, I suspect, about to achieve in securing a Third Reading for his Bill; I am sure that we all wish it well.
I acknowledge the work of all concerned, and I certainly wish the Bill well. I hope that we have managed to improve it today; that is my sense of what has happened, and I am confident that it will be on the statute book before long.

Mr. David Stewart: I shall not delay the House.
I compliment the right hon. Member for Wealden (Sir G. Johnson Smith) on his excellent private Member's Bill. If I am fortunate enough in my future career to come high up in the ballot, I shall certainly model my Bill on the form and content of this Bill, and learn from the excellent debate today.
I made the point earlier about the range of the Bill. It does not apply to Scotland, but the 1993 and 1996 Acts do. I commend to the Scottish Executive that it takes on board the fact that there is a loophole in the Health Service Commissioners Act. I hope that it will look at that.
We should commend the various organisations that have been involved. Some of the input from the Consumers Association has been first-class. The BMA and all hon. Members have been active in supporting the excellent work that has gone into getting rid of the loophole in the Act.

Sir Geoffrey Johnson Smith: May I say how pleased I am that the hon. Gentleman has referred to the work of the Consumers Association? It is something that I should have mentioned; I intended to do so. I warmly endorse that comment.

Mr. Stewart: I thank the right hon. Gentleman.
I commend the right hon. Gentleman for his work in preparing the Bill. I believe it is sensible, practical and strengthens the rights of patients in the NHS.

Mr. Heppell: I thought that it was probably wise, as I grumbled a bit about the new clauses, to stress that, while I may have had doubts about some of them, I certainly have no doubts about the value of the Bill.
I, too, congratulate the right hon. Member for Wealden (Sir G. Johnson Smith) on introducing the Bill, which takes forward the complaints procedure for my constituents even more. I suspect that many people out there do not realise how the ombudsman's role has changed over the years. After being set up in 1973, it changed dramatically after the Wilson review and the report by the Select Committee on the Parliamentary Commissioner for Administration in 1993. The clinical judgment element was introduced in 1996, which was a further step forward. The Bill plugs a loophole.
I do not think that it is the end of the story. One of the things that the process has identified is that more changes could be made to make the system even better. In some respects, I can understand the arguments on why private medicine is not covered by the ombudsman, although there are probably arguments to say that the private sector should be part of the process. None the less, I, and, I think, my constituents, find it amazing that someone who is operating as a locum within the NHS is not part of the process.
People must make their choice. If they go to the private sector, they must realise that they will not be covered by the ombudsman, but I would expect to be covered in respect of any locum that took the place of my doctor. I hope that we will re-examine that matter, but, again, I do not want to end on a sour note. My congratulations go to the right hon. Gentleman and to the Consumers Association for their excellent work on the Bill.

Mr. Miller: I, too, put on record my congratulations to the right hon. Member for Wealden (Sir G. Johnson Smith). He said earlier that he normally gets involved in things to do with the defence of the realm and so on, but the defence of the ordinary citizen, which is at the heart of the Bill, is an important aspect of our work. The way in which the debate has been conducted this morning illustrates the House working at its best. There has been a certain amount of banter, good humour and agreement on both sides.
I congratulate my hon. Friend the Minister on carrying her last amendment as promised. Some of us are still a little confused about the detail. I think that the debate, as my hon. Friend the Member for Nottingham, East (Mr. Heppell) said, will continue to unfold as the function of the commissioner settles down, with the Bill becoming an Act in the near future.
It has been a worthwhile exercise. I hope that the Bill receives a speedy passage in the other place and goes on to the statute book in a very short time.

Mr. Hammond: I add my congratulations to those already paid to my right hon. Friend the Member for Wealden (Sir G. Johnson Smith) on choosing the subject


and piloting his Bill so expertly through the House. As he himself has acknowledged, it is a relatively small measure to fill a specific loophole. However, it deals with a significant perceived injustice, albeit that that injustice affects a relatively small number of people. The injustice arises from the distinction between the independent status of general practitioners and the rather different status of health authorities and NHS trusts, so that if general practitioners cease to provide services, there ceases to be a continuing entity to be held liable for previous malpractice.
On a much broader front than the provision of medical services, there is a growing feeling that people—whether in our police services, health services or in other spheres—should not be able to escape proper scrutiny of their actions simply by taking the easy option and resigning. My right hon. Friend's Bill ensures that, in one sphere, that will no longer be possible.
I tell the hon. Member for Basildon (Angela Smith), in response to her comments, that the Bill deals not only with those who are actively seeking to avoid being held to account or scrutinised for their actions, but with a perhaps much larger number of people whom the ombudsman is unable to investigate—in the example that the Minister gave a few moments ago, simply because of the natural process of retirement. Although they have not sought to evade the ombudsman's attentions, the law prevents scrutiny of them.
On Second Reading, there was a wide consensus in favour of my right hon. Friend's Bill. However, there was also a recognition of the need to balance the proposals with a limitation on the potentially open-ended jeopardy that practitioners might face. Today, with the amendments tabled by the Minister, we have addressed that issue and made the Bill into workable legislation.
The hon. Member for Nottingham, East (Mr. Heppell) was right to say that this legislation is not the end of the story, and I hope that, in a few moments, the Minister will be able to tell us something about the timetable for the Government's wider review of the complaints procedure in the national health service.
I do not agree with the statement of the hon. Member for Nottingham, East that, if people go to the private sector, they have to accept that they will not be covered by the health service commissioner. As we saw yesterday, in our consideration of the Care Standards Bill, the Government are moving towards a recognition that there is a need for unified regulation and registration procedures across sectors, so that, wherever patients choose to go for their medical and social care provision, they can be sure that they are being treated in a properly regulated environment, which includes a proper complaints procedure.
The Opposition are delighted that the Government have acknowledged and taken on board the Secretary of State's responsibility for all patients within the system, not merely those within the national health service. I very much hope that, when the Government consider wider reform of the health service complaints procedure, and possible proposals for a complaints procedure in the private acute sector, they will see the merits of a unified system that allows all patients equal access.
Public confidence requires that the complaints procedure in any body or sphere work effectively. The Bill is a small but important step in dealing with the clear

concerns that a group of people have felt about how the NHS complaints procedure works. It brings those who have felt excluded from the process—disfranchised—back within the net.
The Bill leaves the House with two small concerns still hanging over it. On new clause 6, the hon. Member for Hendon (Mr. Dismore) identified a further small group of potentially aggrieved people who may find that the Bill does not extend the improved access and scrutiny to their cases. It would be ironic and unfortunate if a Bill that set out to address the grievance of a group of people who are excluded from the complaints process inadvertently excluded another group. No doubt that will be considered in another place.
The other point is whether there should be different periods of jeopardy for practitioners who resign from the service in the normal way and those who are dismissed as a result of malpractice. As my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) said, I suspect that our noble Friends in another place may wish to look at that again.
However, those minor points in no way detract from the achievement of my right hon. Friend the Member for Wealden in piloting the Bill successfully through the House. Congratulations are due to all those who participated on Second Reading, in Committee and today on the constructive and positive way in which the Bill has been made into useful and workable legislation.

Ms Stuart: I thank all those who have taken part at the various stages of the debate, particularly today. We have dealt constructively and positively with the Bill. I particularly congratulate the right hon. Member for Wealden (Sir G. Johnson Smith) on choosing a good Bill with a clear purpose and remaining focused on that purpose.
We have had interesting and wide-ranging debates. I am sure that my hon. Friend the Member for Nottingham, East (Mr. Heppell) will take a close interest in the further proceedings on the Care Standards Bill, which will address some of his points on complaints outside the national health service. I am sure that he will be able to make a positive contribution.
Some may have regarded the Bill as minor, but we do not see complaints as a minor issue, even if they affect only a limited number of people. Complaints are important, even when they are sometimes uncomfortable for those on the receiving end. They can be a positive means of improving services. We firmly believe that complaints are a tool for improvement and I welcome the opportunity to raise the issue.
An effective complaints process is not just about taking complaints seriously and learning lessons from them; it is about responding to the complainants' concerns sensitively, providing answers to their questions and reassuring them that their worries are not being swept under the carpet.
The hon. Member for Runnymede and Weybridge (Mr. Hammond) asked about the revision of the complaints procedure. The review is high on our agenda, but there is no precise date at this stage. It will have to be seen within the outcome of the national plan discussions.
There will inevitably be some cases in which even the best endeavours of the NHS complaints procedure will not be satisfactory. In those cases, the commissioner


provides an essential further option for complainants who might otherwise be left without the assurance that their complaint has been taken seriously.
The Bill seeks to plug a loophole which has been identified in the existing legislation relating to the health service commissioner. As is so often the case, it hinges on what appears to be a minor technical point, but for those affected, the problem is very real.
Section 2A of the Health Service Commissioners Act 1993 brings family health service practitioners—GPs, family dentists, opticians and pharmacists—within the commissioner's jurisdiction. Section 2B does the same for independent providers. The intention was to ensure that NHS patients would have access to the commissioner irrespective of where or how they were receiving care and treatment.
It was only when those provisions began to be used as the basis for instigating investigations about practitioners that it came to light that there was a problem because the provisions are phrased entirely in the present tense. As a result, an additional hurdle was placed in front of a small minority of complainants: to investigate a complaint about a GP, for example, the commissioner had to make sure that the GP was still in practice, and was likely to remain so until the investigation was concluded. If the GP retired while the complainant was still pursing his or her concerns through the NHS complaints procedure, the commissioner would not be able to consider the complaint if it was subsequently submitted to him.
Worse still, the commissioner has told us that on a couple of occasions he has been forced to close down an investigation that had already started, because it was being conducted under the auspices of section 2A, and the subject of the complaint retired half way through. Clearly that is highly unsatisfactory. The Bill would amend sections 2A and 2B so as to remove that additional hurdle and bring those such as retired GPs within the commissioner's remit.
As I have said previously, the Government have no difficulty with the principles and motivation behind the Bill. However, as I also said during earlier consideration of the Bill, I have a duty to look at the issues from all perspectives. I must ensure that, in righting one injustice,

we do not unintentionally create another. Therefore, it did not seem to be in keeping with natural justice that GPs or other practitioners who have reached retirement age after a long career committed to providing the very best care and treatment to their patients should have to spend many years wondering whether one day they might find themselves the subject of a complaint to the health service commissioner. On Second Reading, I described it as a sword of Damocles hanging over them. That may seem melodramatic to some, but I have no doubt that that is how it would feel for many conscientious and hard-working practitioners. I therefore said that the Government would table an amendment to the Bill to place an absolute time limit on how long after practitioners or providers permanently ceased to provide the relevant services they should be susceptible to investigation by the commissioner. I am pleased that the amendment considered earlier today was agreed to.
I am equally pleased that the Government's other significant amendment has also been successfully incorporated into the Bill. It may have seemed to be a trivial matter, perhaps even unnecessary to some, that the Bill should be explicit in excluding from re-examination complaints which have already been considered and rejected by the commissioner on the grounds that they fell outside the scope of sections 2A or 2B. Nevertheless, experience has shown that we should never be complacent about such matters, or make assumptions about how legislation will be interpreted. It was entirely right, in my view, that the new clause should be included, and I am grateful to the right hon. Member for Wealden and to the House for accepting it.
This has been the first Bill I have had to deal with since becoming a Minister and it has been a great pleasure and joy, not least due to the support from right hon. and hon. Members. The Bill clearly showed the purpose, function and scope of private Member's Bills. I am sure that we shall look back on today's debate with some satisfaction because the Bill has closed a loophole. Throughout the Bill's progress through the House, the right hon. Member for Wealden has been most supportive and I thank him for that. The Government have no objections to the Bill and we wish it well in its further stages.

Question put and agreed to.

Bill accordingly read the Third time, and passed.

Orders of the Day — Protection of Animals (Amendment) Bill

Order read for resuming adjourned debate on Question [28 January], That the Bill be now read a Second time.

Mr. Eric Forth: As I was saying on 28 January, the Bill failed to make further progress on that occasion because the previous business had taken rather too long. Happily, on this occasion, we have dealt in a proper but disciplined way with the previous business, and we therefore have an opportunity to return to the debate on the Bill and give it fuller consideration. For my part, I hope that there is no reason why the Bill should not complete this stage of its proceedings before time runs out today.
It is worth noting that because of the circumstances that arose on 28 January, the hon. Member for Crosby (Mrs. Curtis-Thomas) had only one minute, according to Hansard, to give her Second Reading speech. I hope that it may now be possible for her to make a Second Reading speech to guide the House more effectively on what was on her mind and what her Bill intends to do. For that reason, I will my curtail my remarks. I have a few things to say about the Bill, but I do not wish to detain the House at any great length.
It was presumably a coincidence that the Minister, too, had only a minute on that occasion to give his views on the Bill. Then again, given Ministers' legendary discipline, perhaps it was not a coincidence. I hope that the opportunity will now arise for the Bill's promoter and the Minister to give the House more of their views.
I accept the aims of the Bill as set out in the explanatory notes and in the brief comments that the hon. Lady made on 28 January. I simply want to flag up a few points that have caught my eye and ask some questions about them. They may be able to be dealt with today but may, more properly, be returned to for detailed consideration.
Clause 1(2)(e) is a key provision. In relation to a prosecution in England, it refers to
a person who, at the request of the Minister of Agriculture, Fisheries and Food, has entered into a written agreement under which he may perform the functions conferred on a prosecutor by virtue of this Act…
That strikes me as unusual. There may be good practical reasons for such a provision, but for reasons that I shall return to shortly, I am hoping for reassurance from the Bill's promoter or the Minister that the provision is sufficiently tightly drawn to stop unqualified or non-responsible people pursuing prosecutions on behalf of anyone else. The wording seems broad, which worries me. However, my hon. Friend the Member for Beaconsfield (Mr. Grieve), with his enormous legal expertise, may be able to guide the House on that point.
I expected to find in clause 2 the essence of the Bill, as I understood it to be from the remarks of the hon. Lady and the explanatory notes. Subsection (2)(b) refers to selling the animals at a fair price, while subsection (2)(c) refers to
disposing of the animals otherwise than by way of sale…
Subsection (3) deals with
protecting the owner's interest in the value of the animals.
Nowhere, however, is there an explicit reference to the welfare of the animals. That puzzled me, because I would have expected a Bill of this nature, given its aims, to have

laid great emphasis on, and made detailed provision about, the protection and welfare of the animals concerned. I thought that that was the point of the Bill. I hope to receive reassurance on that.
There is also no reference, as I might have expected in a Bill of this kind, to the sort of people to whom the animals might be disposed of. I would have thought that some protective requirement would have been appropriate. Simply providing for the disposal of animals otherwise than by way of sale does not strike me as giving sufficient protection, which, again, I thought was the whole point of the Bill.

Angela Smith: Perhaps I can assist the right hon. Gentleman. As clause 2 states:
If…it is necessary in the interests of the welfare of the animals in question…to do one or more of the things mentioned in subsection (2),
it is clear that the welfare of the animals would be taken into consideration.

Mr. Forth: I accept that, as the hon. Lady points out, that is the stated aim, especially of clause 2. However, that provision is not sufficient; it merely states the aim. The clause goes on to refer explicitly to sale, disposal or slaughter; it would be strengthened if detailed provision was included. We are talking about aims or objectives on the one hand and, on the other, the means by which they are achieved. I am surprised that more detailed provisions were not included. However, I seek reassurance as much as anything else; I am sure that we can return to that matter.
Clause 3 also refers to "the prosecutor". Presumably, given the provision in clause 1(3), that might not be the prosecutor, but could be one of those mysterious people with whom a written agreement has been made to carry out prosecuting functions in the place of the prosecutor.
Again, I raise that issue to seek reassurance. Clause 3(1) refers to
the prosecutor or a person authorised by him.
Can only the prosecutor make that authorisation, or can a person with the written agreement of the prosecutor, under the earlier clause, make such agreement? If that were so, we should be somewhat at arm's length.
We need reassurance that the provisions are sufficiently tightly drawn as to ensure that proper people are acting appropriately in the interests of the aims of the Bill. Otherwise, there is the potential for drift, and that could be alarming.
The final question that I want to flag up at present relates to clause 4. It states:
the prosecutor is entitled to be reimbursed.
However, it does not say by whom or from what source, it simply makes the statement. From where will reimbursement come?
Intriguingly, subsection (2) states:
Any amount for which the prosecutor is entitled to be reimbursed under subsection (1) may be recovered by him from the owner summarily as a civil debt.
That may be so, but what if it is not? That may be the hope, but does it cover all eventualities? Some legal guidance may be necessary—

Mr. Dominic Grieve: rose—

Mr. Forth: I am just about to receive some.

Mr. Grieve: My right hon. Friend has touched on an important point, to which I may return. The Bill implies


that conviction will automatically follow prosecution. He may want to consider what would happen if there were an acquittal.

Mr. Forth: I am grateful to my hon. Friend. That point had occurred to me. Clause 4 appears to make certain assumptions that might not be fulfilled. That leads me back to my original question. If the expenses are not recovered under subsection (2), where will the money come from to fulfil the requirements under subsection (1)(a)?
Perhaps there is a straightforward and simple answer to all my questions. The Minister is looking pretty relaxed; he probably has all the answers already, in which case I am merely performing the preliminary function of softening up the issues so that he can come in and demonstrate his legendary knowledge of these matters and reassure us.
I pay tribute to the hon. Member for Crosby for introducing a Bill that is important, but modest in scope. As we are learning, that is the ideal formulation for a private Member's Bill. A measure thus drafted often has a better chance of success, for reasons that I am sure we all understand. Her Bill fits that category well.
However, despite that, the Bill raises important questions. Indeed, I should prefer some of its aspects to be strengthened so that it can properly fulfil its purpose, unless the hon. Lady or the Minister can reassure us. None the less, I wish the Bill a fair wind; I am confident that there is enough time today to do the job that we could not complete on 28 January.

Mrs. Claire Curtis-Thomas: I am grateful for the opportunity to provide greater explanation and justification for the Bill. The House has always had regard to the need to offer animals proper protection in law. We can rightly be proud of our history of legislating on the issue, dating back nearly 200 years. My Bill is a simple measure that aims to improve one of the longest-standing statutes that protects animal welfare. It is simple, but it is no less important for that. I hope that, during the debate, the points raised by the right hon. Member for Bromley and Chislehurst (Mr. Forth) will be adequately covered.
My aim is to plug a clear gap in the existing law as it relates to neglected animals. The statute in question is the Protection of Animals Act 1911, which is the measure that protects animals against cruelty or neglect. However, under the Act, only police constables have a limited power to take custody of animals pending the termination of proceedings for cruelty or neglect. As things stand, animals that are the subject of cruelty or neglect proceedings can be left to suffer while the law takes its course. I shall outline some practical examples of the appalling consequences that that can have for the animals concerned. I am sure that we all agree that that cannot be right.
My Bill aims to put right that anomaly and ensure that it is possible to act quickly when that is necessary in the interests of the animals. To put it simply, it would allow those prosecuting cases of cruelty under the 1911 Act to apply to a court for a care order to protect the animals concerned. The magistrates would be able to grant an

order to the prosecutors allowing for the temporary care or for the disposal, sale or slaughter of the animals concerned.
That would be a considerable improvement on current arrangements. It would allow a range of bodies—I shall explain later what they are—to make applications for care of animals in distress and it would remove the current anachronistic reliance on police constables. It would also allow a court to specify what form the care should take. I shall in a moment describe the options with the welfare of animals in mind.
Let me now turn to the detail of my Bill and briefly outline the background to the clauses. Clause 1 sets out when the Bill would apply. In short, that would be once proceedings have been brought under section 1 of the 1911 Act. It also makes it clear that the Bill would apply only to animals kept for commercial purposes. It would not apply to pets, but it would cover farm, zoo and circus animals, riding schools and the like.
Clause 1 would also limit the use of the new power to make applications for care to government, local authority prosecutors and those organisations that the Ministry of Agriculture, Fisheries and Food or the Welsh Assembly invites to join a written agreement. That would ensure that the power is used responsibly and would avoid vexatious and mischievous applications for care.
Clause 2 provides for a magistrates court to make a care order. It makes it clear that such an order must be in the interests of the animals and that the court must take into account veterinary advice in reaching its view. The clause also sets out what the court may specify in a care order—essentially, the care of the animals or their sale, disposal or slaughter. It makes it clear that, in deciding what to authorise, the court must have regard to the owner's interests in the value of the animals and the need to avoid increasing his costs. Finally, the clause makes it clear that any care order would cease to have effect if the related proceedings under the 1911 Act were themselves discontinued.
Clause 3 would provide powers of entry to a prosecutor making an application for care. It would allow him to enter premises and to mark for identification purposes the animals concerned. Once a care order had been awarded, it would also provide for him to enter premises for the purpose of carrying out that order. I should make it clear, however, that those powers would not extend to allowing entry to dwelling houses.
Clause 3 would make it an offence—currently carrying a maximum penalty of £1,000—to obstruct anyone acting under a care order or exercising the powers of entry that I have just described. It would also create a right for anyone owning or occupying such premises to seek evidence from a prosecutor of his entitlement to enter them.
Clause 4 would allow a prosecutor to recover from the owner any reasonable cost incurred in relation to a care order. It makes it clear that any surplus funds from the sale, disposal or slaughter of animals after the deduction of costs incurred are payable to the owner. Clause 4 requires the owner to provide a prosecutor with any documents—cattle passports are an obvious example—needed to allow him to execute a care order. It creates an offence punishable by a maximum fine—currently £1,000—for failure to do so. It provides the prosecutor with alternative means of securing the necessary documents. Clause 5 contains definitions and makes it clear that the Bill applies only to England and Wales.
The Bill is straightforward and has been sought for some time by those closely involved in enforcing animal welfare legislation, including animal welfare organisations and those in MAFF's state veterinary service. Having explained the detail of my Bill, I shall give the House practical examples of how it would have helped in a range of cases.
Between December 1996 and April 1997, MAFF vets made nine visits to a farm in the north-east on which 200 sheep were found to be suffering from malnutrition and scab. The farmer failed to act on advice and, unfortunately, 53 sheep died. The farmer was eventually convicted and fined, but the plain fact is that his sheep would have been spared much suffering if those managing the case had had powers to intervene positively at an early stage.
Such cases are not all a matter of history. As I speak, MAFF vets are dealing with a case in which a significant number of sheep are suffering from various degrees of neglect. I am sorry to say that, in the absence of a measure such as the Bill, the sheep continue to suffer. There is no doubt that they would benefit from removal to the care of someone with the resources to feed and take care of them properly.
A young man in the midlands owned and kept three cows on a plot of leased land, but was not prepared to provide adequate feed for them. The local authority and MAFF gave absolute priority to the case, which was straightforward and uncontested. Nevertheless, four months elapsed before magistrates could hand down a lifetime ban on keeping cattle. During that period, the owner continued to neglect his animals although, fortunately, a charitable local farmer supplied hay and straw to relieve their suffering. Without his efforts, however, the animals would have been in dire straits.
I could go on, but I am conscious that time is limited. My point is that animals have suffered and are suffering now, and my Bill will address that. The examples that I have given were provided by MAFF experts and inevitably involve farm animals. However, my Bill does not apply only to farm animals and is not a measure aimed directly at the farming community, the vast majority of whose members care well for their animals, as we all know. The Bill applies equally to domestic and captive animals, but the key point is that it applies only to animals kept for commercial purposes.
I am conscious that such a measure needs to be properly framed to protect the rights of animal owners. I believe that the Bill is, and several filters are built into it to protect owners' legitimate rights. First, it reduces the scope for vexatious or mischievous applications for care orders. Not just anyone can apply for such orders, as the power is limited to central and local government prosecutors and those invited into written agreement by MAFF or the Welsh Assembly Agriculture and Rural Development Department.
Magistrates will award an order only when veterinary evidence confirms that it is in the interests of the animals' welfare and have taken into account the owner's interests, including his interests in the animals' value. The Bill rightly contains provisions for any cost involved in caring for the animals to be recovered from the owner, but that should not impose extra costs on businesses. Costs would arise only when there was a prosecution for cruelty or

neglect, and should not exceed what the owner would have incurred by looking after the animals properly and in accordance with the law.

Mr. Grieve: The hon. Lady has come to the point that I flagged up earlier, which is of interest to me. We know that companies, for instance, usually complain that the cost of the receiver vastly exceeds the normal cost of running a business. How does she derive the confidence that the cost of looking after the animal away from the farmer concerned will be commensurate only with that he himself would have had to incur?

Mrs. Curtis-Thomas: I am grateful to the hon. Gentleman for posing that question. I would like to consider it in greater detail, and shall write to him accordingly.
I have described several cases that clearly highlight the weakness in existing legislation. That weakness continues to have a serious effect on the welfare of animals that the law is designed to protect. My Bill is a sensible, well thought through, thorough measure which provides the necessary additional protection for animals. At the same time, it safeguards the legitimate rights of their owners.
A significant number of Members care passionately about the welfare of animals—including, much to our surprise, the right hon. Member for Bromley and Chislehurst. With that said, I am grateful to have had the opportunity to provide a fuller, detailed explanation of the Bill.

Mr. Tim Collins: I congratulate the hon. Member for Crosby (Mrs. Curtis-Thomas) on moving the Second Reading of her Bill. I warmly welcome it and hope and expect that it will make progress today. Nothing that I shall say is in any way intended to impede that progress. I should merely like to put a few observations on record and seek clarification on a number of matters.
We heard in the hon. Lady's excellent speech that she is seeking to amend the Protection of Animals Act 1911, which is the fundamental piece of legislation on the subject. I would have congratulated the Liberals, since they passed the original legislation, but, sadly, there are no Liberal Democrat Members present.
The Act dates from a rather different era and it is perhaps worth noting in passing that it is slightly regrettable that, owing to the nature of modern society, some of the rightly proposed changes have been made necessary not because the original Act was defective, but for the following simple reasons. First, back in 1911, proceedings in court were rather more rapid, so there was far less risk of leaving animals in poor or degrading conditions while court cases dragged on for months and even years. In those days, they seemed to be rather more adept at concluding court cases. Secondly—a fact to which the hon. Lady referred—under the original Act, police constables may take custody of animals. These days, of course, that would be rather difficult. One reason is that there are far fewer police constables. The idea of the village bobby being able to conduct such a task as part of his other activities is not realistic. The hon. Lady is right that the Act needs to be amended, but that is not necessarily because it was wrong. It is just that circumstances today are different.
I should like to look at a couple of points in particular. The Royal Society for the Prevention of Cruelty to Animals has made it entirely clear that it strongly supports the Bill. Indeed, I suspect that it has worked quite closely with the hon. Lady in preparation of the proposed legislation. I am sure that it would be happy to see the Bill make progress today. However, in addition to commenting on the scale of costs that it presently incurs, for which, under the Bill, it will be reimbursed, it states in an interesting passage of its briefing that it
anticipates an increase in the number of commercial animals that it will have to provide for in the future.
I am a little intrigued as to why that might be so. There are at least three possible explanations. The RSPCA could believe that the amount of cruelty to commercial animals is increasing; or that information on a broadly static amount of animal cruelty is becoming more widely available; or that, partly as a result of the extra resources which—it is to be hoped—the Bill will provide, it will be in a better position to initiate prosecutions. I am not sure which of those explanations is correct; perhaps it is a combination of those and other factors.
We should ask the RSPCA why it believes that it will have to step in increasingly frequently. I should have thought that, as a general rule, the status of commercial animals in this country is rising. There are some shocking instances, to which the hon. Lady referred, but generally, most farmers—I am thinking particularly of my very rural constituency—despite immense financial difficulties at present, recognise that they have a duty to look after their animals and that they benefit from doing so. The duty is both moral and legal, and the benefit is that the animals are often their primary asset, so they have no interest in mistreating them in any way.
I hope that the Bill is not felt necessary because there is a widespread view that animal welfare is deteriorating, as I do not believe that to be the case. However, we should aim for ever increasing standards. We should not be content with having reached a plateau.
I was interested in the provisions in clause 3, which relate to the circumstances in which someone may enter premises. As I said, I welcome the Bill and recognise that it is part of what is necessary to plug a loophole, but some clarification is required.
Clause 2(1) refers to "the animals in question"—in other words, the animals in relation to which a prosecution has been brought, which may or may not be the entirety of the animals owned by a particular person or which are present on a particular premises.
However, in clause 3 there is no further reference to "the animals in question". There is, instead, a reference to "the animals" and to the fact that the prosecutor will have given notice to the court and that
he is of the opinion that the animals need to be marked for identification purposes.
If only a small subset of the animals is at risk, it may be necessary for them to be marked, or perhaps all are to be marked in different ways to identify those that are the subject of court action and those that are not.
It may be that different species are kept on the same premises. For example, there are farmers in my constituency, and in many others, I am sure, who keep

both sheep and cattle. The allegation may relate to the mistreatment of just one of those categories, rather than to all the animals.
I wonder whether clause 3 is perfectly drafted in that respect. I am not a lawyer, but from my cursory reading it seems that perhaps the power is being granted to the prosecutor or someone acting on his behalf to go in and mark for purposes of identification all the animals on a site where there is a prosecution pending for violation of animal welfare standards. I am not sure whether that is the intention of the hon. Lady, the Government or the House. If not, perhaps there is a case for clarification. I look to the Minister for that.
Clause 3 also refers to people authorised by the prosecutor, as well as the prosecutor himself. I can envisage circumstances in which the RSPCA may wish to hire people to undertake the task, but we should be careful that those acting on behalf of the prosecutor are employees of a local authority or one of the other organisations that have entered a written agreement with the Ministry of Agriculture, Fisheries and Food in England or the National Assembly for Wales, and that they are fully under the control of, and fully the responsibility of, those organisations, so that if they exceed the powers that they are given by the Bill, their actions will not subsequently be disowned.
Under clause 4(3), the owner is required to provide certain documents to the prosecutor, so that a court order relating to what is in the best interests of the animals can be discharged. Those may be documents
without which the animals cannot be slaughtered for human consumption; or
which are otherwise relevant to the condition or value of the animals.
Subsection (3) states that
the owner must, as soon as practicable and in any event within 10 days of the making of the order, deliver those documents to the prosecutor.
In some circumstances—for example, if the owner is abroad or absent, or the owner of the animal is not the owner of the premises on which it is kept and from which it is collected—10 days may be a challenging time frame.
I appreciate that subsection (4) rightly provides for the penalty which results from someone being guilty of an offence, to apply only if the owner fails to deliver the documents "without reasonable excuse". I note that the Minister is nodding. It would be useful to put it on record that "reasonable excuse" includes circumstances in which the owner is genuinely abroad, difficult to contact or unable to gain access to the documents.
All hon. Members want to introduce a measure that constitutes a genuine advance for animal welfare, but does not impose unreasonable burdens on those who have the responsibility of keeping commercial animals. I know that the latter is not the intention of the hon. Member for Crosby, and I hope that our consideration of the Bill will illustrate that.
With those caveats and observations, I wish the Bill a fair wind. I congratulate the hon. Lady on introducing it. I am sure that it will make progress, and that she will have the pleasure of piloting an important measure to the statute book.

Mr. Andrew Miller: I shall make a couple of brief points, which are essentially queries to the Minister about technical matters. If they cannot be explained now, perhaps they should be tackled when the extremely good Bill that my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) has promoted is considered in Committee.
The Protection of Animals Act 1911 deals with pets, whereas the Bill deals specifically with commercial animals. I want to ensure that we do not accidentally create a loophole, and an artificial boundary between pets and commercial animals. A person might keep dogs and decide that they are commercial when it suits him and he wants to sell them, and pets when it does not. We want to ensure consistency in prosecution for cruelty to animals, whether the animal is kept as a pet or for commercial gain. We are all trying to prevent cruelty to animals and we do not want to create a loophole.
The reverse of the example I gave might also occur. The hon. Member for Westmorland and Lonsdale (Mr. Collins) referred to sheep farmers, of whom there are many in Westmorland. A farmer might claim that a little lamb that he had been accused of treating cruelly was not one of the flock but a pet. We must not create such a loophole.
The hon. Member for Westmorland and Lonsdale referred to the greater number of animals that are kept for commercial purposes, and the breadth of those purposes now as compared with 1911. Then, commercial animals were either farm animals, racehorses or greyhounds and the definition was fairly obvious. There are now many other sorts of commercial animal.
There are two wonderful establishments near me. I am sure that they would not be subject to prosecution under the Bill or the 1911 Act. The first is Chester zoo, an eminent establishment, which not only displays animals for the benefit of the public and enables them to be understood in a proper habitat, but breeds rare animals. The Blue Planet aquarium—also in my constituency—is a superb resource and a wonderful scientific experience for people, especially children, to enjoy.
Wider facilities are available, which raises another issue that should be considered in detail in Committee. Are animals kept in modern facilities covered adequately by the 1911 Act? We are not necessarily dealing with primates, birds or some of the species that we normally see in zoos; much more exotic creatures, especially amphibians and mammals, may not be adequately covered by that Act. I do not know the answer, as I am not a lawyer, but that matter needs to be considered carefully. For example, it would be absurd if a frog were covered, but a dolphin or a porpoise were not. I am sure that that is not the intention of my hon. Friend the Member for Crosby. She used the word "animal" in its broadest sense.
I wish the Bill well—it is extremely timely and contains some good provisions—but those technical matters should be considered in Committee to ensure that there are no loopholes. If you are in the north-west to watch Lancashire, Mr. Deputy Speaker, please visit the Blue Planet and Chester zoo. You will have a great experience.

Mr. David Maclean: I, too, wish the Bill well and I am pleased that we have an opportunity to give it a proper Second Reading before it is debated in Committee. We shall then briefly consider it on Report and, I hope, ensure that it goes to and from the other place in good time before the end of the Session.
When the Bill was debated previously, we had insufficient time to explore some of the little concerns that it raises. Therefore, it was right that it did not make progress; we should not have bounced it through either on the nod or after 10 minutes' discussion. Although we do not want to send a signal that we do not care about animals, we certainly do not want send a signal that we do not care about legislation. An animal welfare Bill did not make progress a few weeks ago, but that does not mean that we do not care about animals. We want to ensure that amending legislation such as this brief Bill is properly debated. We need to consider whether it contains any loophole and whether we can improve it.
Hon. Members have already raised many of the points that I wanted to make, so I shall confine myself to emphasising a couple of issues, the first of which is the term "commercial". I understand why the hon. Member for Crosby (Mrs. Curtis-Thomas) has confined the Bill's scope in such a way. If she had not, I would have been one of those saying that we should consider it carefully because of its serious repercussions. She could have widened the scope to such an extent that its chances of success were endangered because it dealt with all pet animals and, therefore, included rights to enter private homes, which would involve fundamental human rights issues and the right of entry of inspectors from the Royal Society for the Prevention of Cruelty to Animals.
The hon. Member for Crosby is right to have confined the Bill's scope to the keeping of animals for commercial purposes. I understand that that phrase means not necessarily only cattle, sheep, pigs and other farm animals, but other animals, including those in zoos, kept for commercial purposes.
I hope that a little time will be spent in Committee clarifying what is "commercial". I cannot see a definition of "commercial" in the Bill, and perhaps advisedly so. The hon. Lady has possibly been advised by lawyers in Departments or elsewhere not to define the term "commercial". If it is questioned, it may be determined by the court according to the circumstances of the case. Plenty of animal regulations and legislation on the statute book contain a definition. I could not see a definition in clause 1 of the Protection of Animals Act 1911, because it covers all animals. We need to explore that little matter.
I am not concerned that the Bill will cover too many animals. I want the animals that I see every Monday and Friday from my train to and from my constituency to be covered by legislation. A decision may be made as to whether I am in order, but I hope that, when we consider the Bill, we can discuss the horses that are kept in what I call pony paddocks. I suspect that some of them are personal pets in a field with a little tin shed that has been let, and they will not be covered by the Bill. However, if there is a commercial relationship whereby an organisation is housing someone's pet horse for a fee, I hope to goodness that it is caught by the Bill. I also hope that inspectors from the Royal Society for the Prevention of Cruelty to Animals or the local council will travel on the trains and see those grubby pony paddocks.
Inspectors should go into farms and deal with sheep, cattle or pigs that have not been properly taken care of but, from my background in the countryside, I think that there is a welfare problem when horses are kept in a bare field with no grass whatever and a few bits of scabby hay to eat. One can sometimes see the structure of their rib cages through their skin. Those cases need to be investigated.
That is not the Minister's departmental responsibility. Baroness Hayman now has responsibility for horses, but the matter of the welfare of horses has always fallen between different Departments. I do not think that it is a ministerial responsibility for the Ministry of Agriculture, Fisheries and Food, because those paddocks are not registered MAFF farms. I flag up that issue because I want to explore the potential for animal cruelty. If the Bill cannot deal with it, perhaps another measure can.
I do not want to discuss issues that are not covered by the Bill, because that would not be in order. It is narrowly confined, and we have had advice and information from the RSPCA. It is nice that the RSPCA has on this occasion confined itself to subjects that are a core part of its activity. I trust that, after today, my secretary will not receive more letters from RSPCA supporters who were incited by an article 18 months ago. I have a splendid letter that says, "Maclean you dirty b…, I hope you die nastily of cancer of the throat and all your family with you." That was an exciting bit of mail such as one gets occasionally. I had made an intervention on another animals Bill.

Angela Smith: I am sure that the right hon. Gentleman is not suggesting that the RSPCA was responsible for that.

Mr. Maclean: I am afraid that I am. It does not concern me, because the letters were not from my constituents. They were from all over the country, so they made no difference politically. They upset my secretary for a while. The article had been printed in an RSPCA magazine, and gave a slightly biased account of some of our proceedings—hence the letters flowed. We are dealing with a Bill that the RSPCA entirely supports and that we shall back, not because the RSPCA supports it, but because it is right in principle and has considerable merit. Therefore, I hope that people outside the House will give a fair account of our proceedings.
I am aware that the RSPCA wants bigger changes in legislation in future. I hope that amendments will not be tabled to this Bill in an attempt to meet that agenda, because that would endanger it, but the Minister—in conjunction with other Departments—may need to establish a taskforce or working group to review the 1911 Act. We know that the RSPCA, along with other organisations, wants a wider scope of reference to include all animals, not just domestic or captive animals. That would include zootypes such as frogs and other exciting animals that people are keeping nowadays—and, in my opinion, keeping dangerously. When those animals are released into the wild, we are seeing the destruction of our native wildlife. The giant American bullfrog is an example. I am terrified to look at my own wildlife pond in case I see one of those ten-foot monsters.
The RSPCA wants extra powers enabling the courts to confiscate animals from people who care for them, not just their legal owners. I think that that was the problem

with the Chipperfield case. It wants a new offence of "likely to cause suffering", clarification of powers of arrest under the Act, tighter rules on disqualification, and a change in the age at which people can buy pets. Those are legitimate subjects for debate and consideration, and it might be in order to incorporate some of them in the Bill, but I would caution against any such attempt. Unless consultation takes place with the wider industry, with cattle and dog owners and with all the other organisations involved in animal welfare or production related to animals, the Bill will suddenly come up against strong opposition from those quarters.
I urge on the Minister the solution that we adopted a couple of years ago with regard to dog breeding and licensing. I am pleased to say that I blocked the Bill in question, because I had been told by some organisations that they had not been properly consulted. I had been told that this was a one-man show on the part of the RSPCA, which was trying to drive the Bill through without the views of others being taken into account. We set up a working group involving the RSPCA, the National Canine Defence League and a range of other organisations. After they had torn each other's hair out for a while, they produced the material for a Bill that we were able to support.
That is the solution that I recommend to the Minister and all Members, rather than trying to put everything into the Bill and widen its scope so that it is endangered. That is the right way in which to deal with extraneous problems. I do not use the word "extraneous" in the sense of "trivial"; I am referring to other problems that the RSPCA wants to deal with.
There are one or two other little points already mentioned by my hon. Friends that we may look at in Committee. The Bill refers to "a person authorised". Who is the person authorised? We shall want to ensure that, if RSPCA inspectors have those rights, it will be appropriate people—properly authorised people—who go into what will be not domestic premises, but private property, with what could be described as draconian rights. We shall want to ensure that the "reasonable" costs are reasonable, and that, if animals that are suffering are taken away and housed, slaughtered, disposed of or dealt with in some other way, the person responsible is saddled with a reasonable bill, not a gold-plated Rolls-Royce bill.
I support the thrust of the Bill. There was clearly a loophole in the 1911 Act. We cannot allow circumstances to exist in which, when someone is prosecuted for animal cruelty, it is not possible to do anything with the suffering animals.
I sincerely hope that the Minister is given permission to speak again. If he does, I hope that he will be able to tell us a little more about the statistics supplied by the RSPCA. I think that they tell us that, in the first half of 1999, there were nearly 1,500 convictions, 45 of which related to pigs, 27 to cattle and 16 to sheep. That is quite small beer in some senses, although many sheep may have been involved in each prosecution, and, indeed, many pigs. Those figures give me a sense that the vast bulk of the other prosecutions involved cats, dogs and other domestic animals. I may or may not be right, but, given that the Bill deals with commercial animals, given that cases relating to commercial animals constitute only a tiny proportion of prosecutions, and given that there is a big problem of cruelty to cats, dogs and other domestic


species, the time will come when we need to address that problem—not in this Bill, but perhaps in a Government measure after full and proper consultation.

Angela Smith: I congratulate my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) on introducing the Bill. It seems that she and I are crossing paths on many occasions. Yesterday, we debated the construction industry. Today, it is animal welfare. One wonders what the connection is.
I congratulate my hon. Friend on the Bill's limited scope. It is tempting to draw up legislation more widely, particularly when one looks at the limitations of the 1911 Act, but it is important that we become very focused on what we want to do and on what we can achieve through private Member's legislation. It can be difficult.
I mentioned that the 1911 Act needs far greater amendment. I accept that this is not necessarily the place to do it. As the hon. Member for Westmorland and Lonsdale (Mr. Collins) commented, the reason is not because of the inadequacies of the legislation at the time, but because the Act was constructed for problems in 1911. The offences were broadly to do with unnecessary suffering, but specific offences were included: to beat cruelly, to kick, to ill treat, to overload, to infuriate or to terrify any animal. I look at those and wonder how they apply today. The fact is that they were written for circumstances—horses transporting goods—in 1911 that do not arise so much today, so clearly it was an Act for the time. It is right that, as we go along, we update legislation.
The amendments to the Act are welcome additions to animal welfare issues. Charge can be taken of animals after legal action against their owners, rather than the animals being left in possible suffering while the law takes it course. There are welcome additions to the 1911 Act, in particular measures on access to the property of those charged under the Act in order to take into protection the animal concerned.
I should like the promoter and the Minister to clarify a couple of things, but I believe that the measures do not in any way unnecessarily interfere with the rights of someone who has been charged under the Act. The times when the proposed new powers can be used are, as we have heard, quite limited. No one should fear the consequences of the legislation. The financial aspects of the Bill need more detailed scrutiny. I hope that we get the opportunity to do that in Committee.
The 1911 Act did not even consider the prospect of temporary care, disposal, or, if necessary, slaughter of the animals. With hindsight, we can see that that was not properly addressed. One of the problems is court delays nowadays. I hesitate to be critical of lawyers yet again this morning, but courts nowadays are far more full of cases. There is far more pressure on the courts. That was not anticipated in 1911.
The right hon. Member for Penrith and The Border (Mr. Maclean) said that the RSPCA wanted to extend the legislation. We should consider whether anything else can be included without losing the substance and intention of the Bill as it stands. Let us look at how important the 1911 Act has been to animal welfare. More than 80 per cent. of the cases brought for cruelty to animals are brought under the 1911 Act. When an Act has that sort of impact on animal welfare and on legislative cases, it is important that we ensure that it is brought up to date.
I am pleased—my hon. Friend the Member for Crosby reiterated the point—that we are talking about animals kept for commercial purposes, which again strikes a balance. We are not talking about moving in and destroying people's pets. I am particularly pleased, having worked closely with animal welfare groups involved with zoo and circus animals, that they are covered by the Bill. It is essential that it covers commercial owners and not just domestic or farm animals.
Reference has been made to the Chipperfield case. I would be reluctant to legislate or to change the law on the basis of one case, as that would be inappropriate, but I remind hon. Members of the details of the Chipperfield case. A person who is convicted for cruelty to an animal may have the animal removed from his care during the course of the case. It could then be returned to that person if he were the keeper of the animal, not the owner. In the Chipperfield case, the owner was a commercial owner, and thus covered by the Bill, but the keeper was an individual. I do not think that the Bill intends to exclude such people, but that highlights a loophole both in the existing legislation and in the Bill.
If an animal's commercial owner should be denied the right to keep it upon conviction for cruelty, should it be possible for that same person to be classified as an individual, enabling him or her to seek the animal's return? I should be grateful if the Minister would investigate that issue, so that we can address it in Committee. As I said, we should not legislate on the basis of one case, but that case highlights a loophole in the legislation that I think that hon. Members will want to fill.
I should be grateful if we could also deal with the matter of cases in which treatment is "likely" to cause suffering. I realise the difficulties in addressing such issues in legislation, and I am not saying that there should be an amendment attempting to do so, but I should like it to be discussed. In many cases, it is apparent that an act of cruelty is about to occur—for example, when the arrangements for an animal's feeding and care are inadequate or poor. It is not possible to remove that animal or to change those conditions until a specific act of cruelty is committed; we can only wait until there is an offence, although we know that one is about to occur. It would be helpful if the Committee could specifically address that issue, to clarify it and to get it out in the open.
One purpose of private Member's Bills is to tidy up legislation, and another is to fill loopholes that are discovered after legislation has been operating. Earlier today, in our consideration of the Health Service Commissioners (Amendment) Bill, we were able to close one important loophole, and I am pleased about that. The Protection of Animals (Amendment) Bill will make an important contribution in improving animal welfare and to improving perhaps the most important animal welfare legislation of the past 200 years.

Mr. Dominic Grieve: When the Bill was previously considered by the House, before debate on it was adjourned, my hon. Friend the Member for South—East Cambridgeshire (Mr. Paice) welcomed it. I repeat that welcome. Today's short debate on it has been most helpful and constructive, enabling us to clarify some of its aspects. It is clearly desirable legislation.
There is a loophole in the Protection of Animals Act 1911, and I think that the hon. Member for Basildon (Angela Smith) may have put her finger on it when she


said that, in 1911, matters came to court much faster. I also suspect that in 1911, in many cases, the animal itself may have been at the centre of the livelihood of the person concerned, so that its removal would have caused the loss of that livelihood—if one did not have one's horse, one could not earn one's living. That may have been another consideration in development of the original legislation.
Clearly, times have changed. Now, it is desirable that, when a prosecution is brought and it is felt necessary that the animal should be cared for elsewhere or sent away for some other purpose, it should be possible to do so. I therefore hope that the hon. Member for Crosby (Mrs. Curtis-Thomas) will take in good part the one matter that I flagged up as causing me some concern and that, undoubtedly, can be examined in greater detail in Committee. However, perhaps it is right to explain the point now.
Few people would consider that, in cases in which a prosecution is brought, someone is subsequently convicted and an animal is, essentially, taken into care by the prosecutor, it is wrong that reasonable costs of looking after that animal should be paid. I dare say that as long as the care does not involve—as my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) said—a gold-plated regime with astronomical costs, no one would consider it wrong that those costs should be paid for, and then recovered from, the owner.
However, there will be cases—I myself have had experience of such cases, having either prosecuted or defended in them—in which prosecutions are either mistakenly brought or, when the matter comes to court, the magistrates do not share the prosecutor's opinion. I recollect at least one case involving horses in which veterinary evidence was advanced—and preferred by the court—that said that no cruelty had been involved and that the horses concerned were properly cared for. The defendant was acquitted.
As I understand it, in those circumstances, the Bill provides that the owner of those animals—the farmer—would still be liable for the costs incurred in looking after the animals when they were removed from his care and control. In many cases, those costs ought to be similar to those that he would have to bear if he was looking after the animal, but sometimes there will be extra costs. For example, transport costs to remove the animal from the farm to a new place of residence might not have been incurred if the farmer were looking after the animals. On farms, the costs often pan out, with members of the family looking after animals, and may not reflect in pounds and pence the same costs that may be incurred elsewhere.
The Opposition support this well intentioned Bill and I have no hesitation in commending it to the House on Second Reading. I share the enthusiasm with which it has been greeted. It would be a pity if it were subsequently criticised when individuals were acquitted and complained that an unfair financial burden had been placed on them as a result of the way in which the provisions are framed. I hope that we can look at that in Committee, because, having examined it with—dare I say it—a lawyer's eye, I have a slight anxiety. It would be beneficial if the issue could be resolved. It is possible that I am worrying about nothing and my anxieties can be

allayed, but we should not unfairly add to the economic burdens on members of the agricultural community and those with animals.
I repeat my welcome for the Bill and my hope that it will receive a Second Reading today.

The Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food (Mr. Elliot Morley): With the leave of the House, I shall respond to the debate. I congratulate my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) on introducing the Bill and on her detailed and careful presentation of it, which has been helpful to the House. I am glad that we have had an opportunity for a longer debate. I appreciate the comments of all those who have spoken and the constructive assistance that they have given. Some reasonable points have been made about details and I shall try to reassure hon. Members. We shall have an opportunity to consider some of them seriously in Committee.
I welcome the constructive contribution of the right hon. Member for Bromley and Chislehurst (Mr. Forth). I assure him that anyone wanting to prosecute under the Bill must have written agreement—from MAFF in England or from the National Assembly in Wales. It is not possible for just anybody to take action. There are controls to ensure that the action is proper and proportionate and is taken by proper organisations for proper reasons.

Mr. Forth: I am grateful to the Minister for that explanation. Can he give us an idea of the sort of people the Ministry has in mind? There must be some requirement, qualification or limitation.

Mr. Morley: I can give the right hon. Gentleman an idea of those whom we regard as appropriate persons and organisations. They include the veterinary investigation service, local authority officials and bodies such as the RSPCA. They are all respectable bodies with experience that know how the system operates.
The hon. Member for Beaconsfield (Mr. Grieve) talked about apportioning the costs involved in looking after animals. The interests of the owner are taken into account in the Bill. I was asked what would happen if a person were acquitted. The care of the animals primarily involves feeding them. In some cases they may need veterinary attention. Those costs would have been incurred anyway. There are powers to sell the animals, but generally speaking there would be no need to do that and they would simply be fed on site. However, in some commercial operations, agricultural animals such as pigs need to be sold when they reach a certain optimum weight otherwise their value starts to decrease. The Bill includes an obligation to get the best value for the owner, so if for some reason the owner is unable to sell the animals or run the farm it might be better for them to be sold at the appropriate time in order to maximise the return. Any surplus after costs have been met will be returned to the owner.

Mr. Grieve: I follow that. I accept that the cost of foodstuffs, to which the Minister referred, is likely to be pretty much identical, whether they are provided by the


farmer or someone else. However, I also referred to transport costs. Is the Minister in a position to cover that now?

Mr. Morley: I shall come to that. I wrote down all the points in the order in which they were made and I am working through them in a linear way.
In response to the points raised by the hon. Member for Westmorland and Lonsdale (Mr. Collins), the 1911 Act is very broad and that is helpful in relation to its application. Many of the speeches today referred to farm animals, which are indeed covered by the 1911 Act. However, the legislation covers all commercial animals. Therefore, it applies to pet shops and other commercial enterprises where there have been problems, such as puppy farms and commercial dog breeding, in respect of which there is a loophole in the law.
Hon. Members were right to say that the Bill addresses a small minority of cases. There are only a few cases each year, but they involve unacceptable suffering by the animals concerned so we are trying to close the loophole.
The hon. Member for Westmorland and Lonsdale was right about the identification of animals. In some cases it is necessary to determine which animals are subject to the order as they might be in mixed flocks or mixed ownership. In some cases the owner might not be complying with the law and the Bill includes powers to enforce compliance in relation to marking.
My response to my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller), is that the legislation covering pets is generally regarded as adequate although there may be a case for reviewing the 1911 Act. The Bill extends the 1911 Act to commercial animals. However, the Bill also covers fish in commercial operations when there is an appropriate requirement to take action.
The right hon. Member for Bromley and Chislehurst may be reassured to know that the powers in the Bill cannot be applied without the recommendation of a veterinary surgeon. That is another safeguard.
The right hon. Member for Penrith and The Border (Mr. Maclean) asked about the definition of "commercial". In the Bill, the term applies to animals that are being reared solely for profit as part of a commercial operation. That is an interesting point that we shall consider to ensure that the provisions have adequate grounds—although he may be right that it will be a matter for the courts to determine; he makes a fair point.
In response to the right hon. Gentleman's point about horses, there are regulations relating to the welfare of horses in addition to the 1911 Act. Of course, he is right that responsibility for horses is spread across a number of Government Departments—the Home Office, the Department of Trade and Industry and the Ministry of Agriculture, Fisheries and Food. However, he may be pleased to know that when the Prime Minister's action plan was discussed with representatives from the farming sector, one of the points that was made—although it was not one of the headline points—was that MAFF was to take a stronger role in relation to co-ordinating issues relating to horses. This applies not only to welfare but to the promotion of the rural economy, and the valuable and expanding role of equine businesses in it. However, welfare issues will also be included. I take the right hon. Gentleman's point, and will consider it further.
The right hon. Gentleman spoke about the unauthorised release of non-native species, such as American bullfrogs. That is already covered by legislation. It is against the law, but enforcement is difficult. There are only a few such cases. Most of those who keep, breed and sell animals commercially, whether for agricultural purposes or the pet trade, are perfectly respectable and proper people, who look after their animals. We may only be talking about a minority, but there is a problem. It might help if I give examples not related to agriculture that show how the Bill would work.
My hon. Friend the Member for Basildon (Angela Smith) spoke about costs. She went into some detail about how the Protection of Animals Act 1911 worked, and its weaknesses. She made a good case. Some of her points went beyond the Bill, which closes a loophole and is fairly limited in its scope. However, she made a good argument for considering how the 1911 Act works and how it could be strengthened. I repeat that it is a very broad Act, which is helpful when it comes to bringing prosecutions. However, I do not say that it could not be improved. The Bill is part of improving it.
Generally speaking, the ownership of the 1911 Act is with the Home Office, and my colleagues there might like to consider it. I know that my hon. Friend is not without influence in the Home Office, and she may like to raise the matter herself.
The hon. Member for Beaconsfield spoke about protecting the owner's interests. Clause 2(3) makes it clear that the owner's interest must be taken into account. He noted that there may be additional costs that have not been included, such as those of transporting animals. I would have thought that that is more the exception than the rule. It is easy for all concerned, if the animals are in good condition, to feed them on site, make sure that they are properly fed and watered and have adequate care. In some cases, however, it may be desirable to move them to another site where they can have proper care. We must bear it in mind that the provisions do not apply only to agriculture; they could apply to a horse sanctuary that has gone bankrupt, which is not unknown. If that happens and there is no one to care for the horses, it would be best to transport them to other sanctuaries to ensure that they have adequate care. Any action must be proportionate; we must take into account the needs of the owners, but there must be the flexibility to deal with a range of circumstances that might arise.
By way of conclusion, the example that I shall give concerns the commercial breeding of dogs. If some dogs were in very poor condition and it was necessary to ensure that they were cared for properly, the answer would be to disperse or even sell them, because the value of puppies bred commercially falls dramatically after three months. There is a need for such powers, not only in relation to the welfare of the animals, which is implicit in the Bill, but to make sure that the owners of the animals are not unreasonably denied their legal entitlement, bearing it in mind that they may ultimately be acquitted. In those circumstances, the action must be proportionate, and the Bill has been drafted so as to ensure that that is the case.
Because this is a continuation of the debate that took place earlier, my hon. Friend the Member for Crosby will not have the opportunity of replying. I know that she would want to thank all the people who have spoken in the debate for their constructive and thoughtful remarks. Of course, the Government will consider those remarks


carefully in relation to our responsibility and influence in such measures. I know that my hon. Friend appreciates the comments that have been made—as I, on behalf of the Government, appreciate her work in introducing the measure. It is important for animal welfare, and plugs a loophole that has existed for far too long and led to cases of unacceptable suffering for animals. Thanks to her, such cases will be brought to an end.

Question put and agreed to.

Bill accordingly read a Second time, and committed to a Standing Committee, pursuant to Standing Order No. 63 (Committal of Bills).

Orders of the Day — Building Societies (Transfer Resolutions) Bill

Order for Second Reading read.

Mr. Tony McWalter: I beg to move, That the Bill be now read a Second time.
As there are only 10 minutes before the Adjournment debate, I speak with a sense of foreboding. It would be inappropriate to ask the House to agree to a Second Reading in such a short time. However, I hope to make enough points to suggest to my hon. Friend the Economic Secretary to the Treasury and to other hon. Members the importance of realising that the status quo on building societies is unacceptable. As someone who was elected to this place not only as a Labour but a Co-operative Member, I have a strong sense of the contribution that co-operation can make to an effective economy.
I want significant obstacles to be placed in the way of those—be they boards of directors or members—who want to asset strip building societies. I know that the Government have already tried. Indeed, if there had been a 3 ft fence over which carpetbaggers had to jump when the Government came into office, it would now be somewhat higher—perhaps a 5 ft fence. That is because the Government amended the regulations to require 500 members of a society to call for a resolution of transfer instead of 50.
I appreciate that effort. It showed that the Government were prepared to take action to support the principle of mutuality. However, while that obstacle was being fashioned, a type of 5 ft-fence jumper was evolving. The rising use of the internet means that, in 2000, it is easier to obtain 500 signatures than it was to get 50 in 1995. Although that tool was not fashioned by the carpetbaggers, it has been of considerable use to them. In practice, the Government's efforts to try to protect building societies have proved to be nugatory.
The Bill proposes to construct an even higher fence—a 10 ft fence. However, it is not my intention to prevent a transfer of mutuals to the shareholding sector. We cannot do that; it would be undemocratic. None the less, it is right to make that more difficult. All democracies have a high threshold for fundamental changes to their constitution. In that, the building society sector is no exception.
I draw the attention of hon. Members especially to clause 3. It proposes a turnout of 50 per cent. to try to ensure the right of borrowers to have a full say in the process of transfer. At present, borrowers are often neglected in the rush of savers to get their golden handout. Indeed, as savers currently outnumber borrowers by seven to one, the carpetbaggers need activate only savers in order to pass a transfer resolution. Those who stand to lose most—the borrowers—are often unaware of their rights and they vote in numbers too few to make a real difference.
If the Bill were passed, boards of directors would have to show borrowers, as well as savers, the virtues of their decision. I agree that that might sometimes be difficult, because a borrower would be much less likely to vote for a handout, if they suspected that they would pay dearly for it in the future through higher interest rates over a protracted period.
I have said that the status quo is not acceptable. I urge the Government to change it more fundamentally than they have been willing to do heretofore. Last year, the Britannia building society lost £3 million when one of its members called a ballot on transfer only to call it off at the last minute. Those resources could have gone to providing a local financial service to a community or towards ensuring a continuation of the Britannia's competitive rates for savings and loans.
Again only last year, the Portman building society removed some of its members who had joined entirely with a view to scuppering its mutual status. If my hon. Friend the Economic Secretary has a minute or two at the end of my speech or can do so in writing, I will be grateful if she will say whether it is true that the Treasury was mad at the Portman building society. From my perspective, I compare the action of the Portman to the action of the Labour party when it removed the Militant Tendency. It is a democratic principle that those who sign up to an organisation, who say that they accept its objectives, but who then seek to change it fundamentally or destroy it, can be legitimately excluded from deciding the future of that organisation.

Mr. John Butterfill: Does the hon. Gentleman agree that it is a national disgrace and contrary to our national interest that so many mutuals—both building societies and insurance companies—are under attack? Is it not the Government's duty to do more to protect them and to support the Bill that he is introducing today?

Mr. McWalter: I am grateful to the hon. Gentleman. The Bill is about mutuality, democracy and the inadequacy of the status quo. It is not about imposing a single economic model on the rest of the financial sector. Our financial sector is strong because of the great pluralism of its structure, and building societies play a particularly important role in local communities.
A recent article in The Times suggested that building societies offer a 0.54 per cent. advantage to their savers and borrowers. I know that that does not sound a lot, but when one is dealing with very large loans or savings, the figure is significant. It results from the fact that a resource has been built up over time and has allowed people to obtain a very good deal from the building society sector.
Building societies also help to deliver the Government's inclusiveness agenda. Branches that provide a local financial service are much less likely to shut than those of the banks and the ex-building societies. Building societies were in the forefront of seeking to curb the desire of the banks to charge astronomical amounts for the use of automated teller machines, and their charges are modest. It is no surprise that a recent study by the university of Newcastle found that building societies made an important contribution to the Government's agenda that seeks to tackle social exclusion.
The building society sector is under attack. Resources are being applied to aims that do not include the welfare of its members. Some 69 building societies are left in this country and every one of them is, in various ways, being looked at by people in whose vocabulary "mutuality" is the last word.
I do not wish to be a killjoy. I have often experienced periods when, if somebody offered me £1,000 because I had got lucky, I would have been very grateful for it. However, such handouts have a cost. Adam Smith once said:
Men love to reap where they never sowed.
I find repugnant the sight of a single generation destroying a mutual system that has been so beneficial to so many. I urge the Government to reconsider whether they want to accept the status quo as it stands.
There is much in-work poverty in my constituency, where a semi-detached house costs £150,000. The Government are rightly trying to hold down interest rates and building societies are rightly an aid to the process of trying to keep in-work poverty and the poverty that results from extremely high house prices in check. I urge the Government to give further consideration to supporting my Bill.

The Economic Secretary to the Treasury (Miss Melanie Johnson): Thank you—

Mr. Deputy Speaker (Sir Alan Haselhurst): Order.

It being half-past Two o'clock, the debate stood adjourned.

Debate to be resumed on Friday 21 July.

Orders of the Day — Remaining Private Members' Bills

URBAN REGENERATION AND COUNTRYSIDE PROTECTION BILL

Order for resuming adjourned debate on Question [24 March], That the Bill be now read a Second time.

Hon. Members: Object.

Debate to be resumed on Friday 9 June.

FIRE PREVENTION BILL

Mr. Deputy Speaker: Not moved.

CENSUS (AMENDMENT) BILL [LORDS]

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 9 June.

CORPORATE HOMICIDE BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 9 June.

ZOO LICENSING (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 9 June.

ROAD TRAFFIC BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday 9 June.

Orders of the Day — Hospital Waiting Times

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Tony McNulty.]

Mr. Owen Paterson: I thank you, Mr. Deputy Speaker, and through you, Madam Speaker and her staff, for picking my name out of the hat in the ballot. I thank the Under-Secretary of State for Health, the hon. Member for Birmingham, Edgbaston (Ms Stuart) for attending what may be a lonely vigil this afternoon.
The subject of this debate is the severe problems and lack of capacity which were brought to my attention in January by my constituent Dr. Ian Rummens of Oswestry, who is secretary of the Shropshire local medical committee. I also wish to discuss the difficulties that I have had in bringing the matter to the attention of the Secretary of State through the medium of Health questions.
Dr. Rummens wrote to me in January, and sent me a copy of a letter he had written to the Shropshire health authority. He also sent copies to all the Shropshire Members of Parliament and even the Prime Minister. I shall give a flavour of the problem by quoting from that letter, in which Dr. Rummens says,
it remains our firm belief that, despite the best efforts of the Health Authority in preparation and contingency planning, Shropshire Hospitals were unable to cope because there were insufficient acute beds. We, as general practitioners, have no doubt that we did not see a flu epidemic this winter and this is borne out by the statistics. Even so, cold surgery was cancelled for weeks on end.
He continues:
There were times when general practitioners were told that no bed was available in Shropshire to admit acutely ill patients and the ambulance service was reduced to taking 999 calls only. This was a fairly normal winter with the sort of seasonal rise in activity that is predictable and which should be coped with as a matter of routine. Had a flu epidemic occurred, the picture would have been very much worse.
He adds:
We fully appreciate that staff in the Hospital Trusts and the Health Authority have worked extremely hard to provide the best service possible. In our view bed numbers and staffing are largely determined by funding from Central Government and this is clearly inadequate.
I should like to say at the outset that in no way am I blaming the health authority or the hospitals concerned for the problems over the winter. Using great skill, they have to make do with the tools that central Government give them. It is my role to bring those problems to the Government's attention. I have tried to do that, and I was lucky enough to have the sixth question at Health questions on 1 February. I quoted from Dr. Rummens's letter, and read out the passage stating that cold surgery was cancelled for weeks last winter. I was surprised that the Secretary of State did not listen to the problem, instead demanding to see a dossier of evidence to prove that priorities were any different from those in previous winters.
I therefore set about putting together a dossier with Dr. Rummens's aid. I have a substantial number of letters, although there is not time to go through them today. To give their flavour, I shall quote from one from a doctor in Bishop's Castle, which gives a sense of the problems faced by GPs in that period. He states:


I had to visit a patient urgently with a suspected coronary. He had collapsed with chest pain and had previously had a heart attack and needed urgent admission to coronary care. On attempting to admit him to Royal Shrewsbury Hospital I was told by bed bureau that they were closed and had been instructed by their board of directors not even to take the name of the patients. I then attempted to admit him to Princess Royal Hospital—
in Telford—
Wrexham Maelor Hospital and Hereford Hospital all of whom were closed. Royal Shrewsbury Hospital is 23 miles from Bishop's Castle and all the others were at least 40. On telephoning the Director of Commissioning at the Shropshire Health Authority to ask what I could do I explained that Royal Shrewsbury was closed and was not accepting patients of which act he was unaware. He phoned back 10 minutes later to confirm that indeed Royal Shrewsbury Hospital was unable to accept patients. I explained that I had an ambulance with me but that they were unable to take the patient anywhere unless I was able to find a bed. In the event I made a pragmatic if not clinically correct or safe decision to admit this man to Bishop's Castle Community Hospital, on the grounds that he was better being monitored by nursing staff who could resuscitate him rather than risk not only the journey but also a long unpredictable wait in casualty and the increased stress that this would cause.
Cases do not come much worse than that: a suspected heart attack, an inability to find a bed at any district general hospital and a man ending up in a local cottage hospital.
A sense of doctors' determination comes through in a letter from a doctor in Shrewsbury, who says;
It is true that with monotonous regularity bed bureau's opening gambit is "We've got no beds", but I've simply said that the patient has got to come in and there has been no further discussion. Some of the patients have had to wait at home for a phone call summoning them some hours later.
Some cases are very sad. A doctor in Wem in my constituency said:
I attempted to admit to Royal Shrewsbury Hospital a patient…who was in the terminal stages of renal failure and heart failure…the bed bureau informed me that there were no medical beds…but that Telford still had some… Telford hospital was closed to patients from the Shrewsbury area.
He said that he could not admit the patient to the Royal Shrewsbury until the following day, after approximately a three-hour wait for a bed to become available. The patient died the following day. I could go on at some length; what comes through in all such letters are the practical problems that Shropshire GPs face in emergency cases. Such cases should have been admitted immediately. That point completely ignores elective cases, for which there was no capacity at all.
One explanation could have been the incidence of flu, about which I went back to the local medical committee. The secretary told me that the incidence peaked in the west midlands at 230 per 100,000 population for a short period only, whereas normal seasonal activity is defined as between 200 and 400 per 100,000, and an epidemic as greater than 400 per 100,000. He also confirmed:
planned surgery was cancelled as early as the last week in October at the Royal Shrewsbury…because of pressure from acute admissions.
My constituent, Dr. Ian Rummens, was somewhat dismayed at the Secretary of State's reply in the House, saying that the situation had progressively deteriorated over the past two to three years and that the right hon. Gentleman's answer
indicates a degree of complacency large numbers of Shropshire patients would not share.

He was also concerned about the fixation with waiting lists, stating that now that there was a waiting list to go on the waiting list, such figures were discredited.
Yesterday, the Government had a big spin success, announcing that they had met their election target on waiting lists. However, that ignores those waiting to get on the waiting list. Those national figures are significant. The number of people waiting more than 13 weeks and up to 26 weeks increased from 262,484 in March 1997 to 401,833 by March 2000, and from 55,248 to 132,243 for those waiting more than 26 weeks.
One solution is spare capacity in the private sector. BUPA, the second largest private health care provider, was recently quoted as having spare capacity for 10,000 to 20,000 extra patients a year. Overall, the private sector could take up to 200,000 extra cases annually. Independent providers are willing to co-operate closely with the Government in any area where NHS capacity is currently inadequate and they have spare capacity.
It is worrying that increasing numbers of people are being forced to pay twice—first through their taxes and secondly by direct payment. On 19 March, The Observer reported that BUPA carried out 25,000 operations that were paid for directly by patients who did not have insurance. The incidence of that has increased by 30 per cent. in two years. That has been brought home to me in human terms in one or two cases. A typical case is that of Mrs. Hough of Whixall—a meritorious case which I should have thought would take priority. She looks after her husband, who has had two strokes, and she had two bad hips—so bad that last January it was agreed that both should be operated on through the NHS. Unfortunately, one of the hips collapsed, and she was forced to have it operated on privately in June, but she was promised at that time that the second operation would be done on the NHS. Here we are in May, and the other hip is so painful that although I wrote to the Minister of State, Department of Health, the hon. Member for Southampton, Itchen (Mr. Denham), on 1 May, Mrs. Hough will be forced to go private and pay for the operation again on 8 June.
The obsession with waiting lists causes distortion. A case such as Mrs. Hough's should take priority, as she is doing society a great service by looking after her very ill husband. I raised the question again on 2 May, and mentioned the heart attack patients and the fact that at times no beds were free. I was surprised when the Secretary of State savaged me and said:
As for the hon. Gentleman's allegation, he is simply wrong.—[Official Report, 2 May 2000; Vol. 349, c. 2.]
Meanwhile, I had been discussing the matter with—

Mr. John Butterfill: On a point of order, Mr. Deputy Speaker.

Mr. Deputy Speaker (Sir Alan Haselhurst): May I take the point of order at the end, so as not to take up the valuable time of the hon. Member for North Shropshire (Mr. Paterson)?

Mr. Paterson: Thank you, Mr. Deputy Speaker.
I discussed the matter with Shropshire health authority, which, in fairness, had gone into great detail and done a lot of work with the representatives of hospitals, primary care and social services, and had daily meetings to co-ordinate those agencies during the winter period.


Because of the lack of capacity, the health authority was forced to deliver a plan to suspend routine surgery for three weeks and admitted to me that the number of intensive care beds was at times insufficient.
It is clear that there is not adequate capacity to cope with the rising population of Shropshire and the extra costs of providing health services in a widely dispersed rural area. There are extra costs involved in staff travel, ambulance travel, and the need for more facilities. That has been confirmed by studies in Wales, Scotland and Cornwall. The formula appears to militate against a rural area such as Shropshire.
I understand that the allocation formula is frozen until 2001–02, but that the Government are reviewing it. I hope that the review will examine the costs of delivering in rural areas. In Shropshire, the population is set to grow over the next five years from 431,400 to 441,800—a growth of 2.4 per cent. It is worth pointing out that, currently, 57 per cent. of the people in that health authority live in rural areas with fewer than 25 people per hectare. In addition, those who are moving in tend to be rather more elderly: 17.3 per cent. are in the middle-aged group, 55 to 64, and 7.8 per cent. are over 65. Obviously, they are heavier users of health care services.
I am sure the Minister will tell the House that she is proud of her Government's achievement in giving Shropshire health authority a further £23 million in two tranches, in December and March. Of course, that is gratefully received, and I do not want to sound churlish, but there is a worry that almost £4 million of that money will be spent on paying back past debt or past overspend, not increasing capacity. There are anxieties about what will happen this winter.
I should like the Minister to study two reports, which are well worth reading, on the extra costs of delivering in rural areas. The first is a Welsh Office report from June last year entitled "The Allocation of Health Authority Discretionary Resources in Wales." The other, commissioned by the Cornwall and Isles of Scilly health authority in May last year, is entitled "The additional costs of providing health services to rural areas." The reports highlight the lack of economies of scale, additional travel costs, the high level of unproductive time, additional telecommunications costs, poorer access to training, and difficulties with consulting and other support services.
On travel, there is empirical evidence to confirm that significant differences exist between urban and rural areas. In Dorset, for example, occupational therapists in urban areas travelled 1,952 miles, compared to the 4,880 miles travelled by those in rural areas.
In conclusion, it is clear that demand is outstripping supply in Shropshire, particularly during the winter period, and that some waiting times have been intolerable. The current funding formula is not reflecting Shropshire's rural nature or its growing population. Last winter showed that capacity is inadequate. It is unacceptable for elective surgery to be stopped, or for such stoppage to be planned, and for emergencies to struggle to find beds.
Will the Minister please investigate the formula and the real problems that were created last winter, which have so far been dismissed at Health questions by the Secretary of State? Will she also consider the problem that £4

million of the extra £23 million has been spent on clearing debt instead of on increasing capacity to prevent problems next winter? Will she consider dropping the political slogan about waiting lists, which is now discredited, and concentrate on waiting times, which is the measure that counts for patients, and judging admissions on the basis of clinical need? Will the Minister also consider allowing health authorities to take advantage of private capacity, if it is available, to reduce waiting times for taxpayers when NHS capacity is inadequate?
If the Government insist on running the NHS rigidly from the centre, will they please listen to those like me, who represent patients, and not arrogantly dismiss us as they have dismissed me at Health questions.

Mr. Butterfill: On a point of order, Mr. Deputy Speaker. For most of this morning, Whitehall has been blocked by a violent demonstration. Hon. Members have been hindered when trying to reach the House; access to Ministers' and Members' offices and Downing street has been impeded. Have you received any request from the Home Secretary to come to the House to make a statement about why Whitehall has not been cleared?

Mr. Deputy Speaker (Sir Alan Haselhurst): I am grateful to the hon. Gentleman for raising that matter. The answer to the specific question is no, there has been no request for a ministerial statement. However, I am aware of the difficulties that hon. Members have experienced. I naturally regret that. I understand that the difficult problem has been confined to Parliament street and that the police are making all efforts to clear that street.

The Parliamentary Under-Secretary of State for Health (Ms Gisela Stuart): I am grateful for the opportunity to discuss the subject of waiting times for hospital treatment in winter. I congratulate the hon. Member for North Shropshire (Mr. Paterson) on securing the debate. While parliamentary rules allow me to wear a hat, I am sure that he will appreciate the fact that I have not taken the opportunity to do so. That implies no discourtesy to the House. I hope that I shall be able to convince hon. Members that there is no need for either the Secretary of State or me to take up the challenge with which we were issued.
Before I focus on waiting times, I shall deal with several issues that the hon. Gentleman raised in his speech. He is right to say that we are facing a lack of capacity throughout the national health service. To facilitate expanding capacity, we have introduced several measures nationally and locally. It is important to consider the extension of manpower capacity through extra nurses and doctors, and training places. The national beds inquiry is also important. It has reported and we shall be able to reflect more carefully on where extra capacity is needed.
The hon. Gentleman also referred to the review of the allocation formula. He is right to say that the current formula is frozen until 2001. All factors, including those that he raised, will be taken into account in arriving at the new formula.
As for past debts, it is the statutory duty of any health authority to operate within its financial framework. We expect health authorities to work within their allocation. I


am therefore afraid that I shall not be able to offer the hon. Gentleman any comfort on past debts. They simply have to be paid, as in any other organisation.
The hon. Gentleman also mentioned the private sector. I assure him that, for geographical reasons, there are capacity problems in the private sector. He will be aware of that when he considers the location of BUPA facilities and the needs of his constituents.
Overall, health authorities have worked with the private sector where that is advantageous and cost-effective, and many hospitals have made such arrangements where they are in patients' interests. The bottom line is that NHS patients receive the treatment that they need, and that that is funded by the NHS. My right hon. Friend the Prime Minister made it absolutely clear that there is no ideological aversion to such local arrangements.
I shall deal with winter hospital waiting lists and explain how we prepared for the winter pressures overall. The system coped much better than in previous years. That did not happen by accident, but because of careful planning. We established local winter planning groups, which first met last April, in all areas. For the first time ever, they provided careful co-ordination between all health providers including social services, health authorities, trusts, primary care groups, out-of-hours services, deputising services, pharmacists, and even the police and fire services and other local organisations. Last year, we also provided the money much earlier so that that planning was underpinned by funding. We allocated an additional £2.24 million, which was specifically targeted at waiting lists, to Shropshire health authority.
Before saying more about the effect of that money, I shall address the hon. Gentleman's concerns about the priorities in Shropshire being different from those for previous years. The overall plan in Shropshire for last winter was for routine elective in-patient work to cease in the three weeks from 20 December to 10 January. I accept that that was slightly longer than in previous years, but there was an extremely valid reason for that: the extended bank holiday period and the extra emphasis on winter planning over the millennium.
Some elective day-case procedures continued after 20 December and resumed fully in January. Emergency and urgent surgery was carried out as necessary during that period, so the NHS did what it normally does: it ensured that there was sufficient capacity to put emergency cases first. There was no distortion of clinical priorities; the right ones were used.
There were busy periods. I am advised that local hospitals were very busy over the new year because high levels of flu, bronchial infections, which disproportionately affected the elderly population, and viral pneumonia, which put greater pressure on the NHS. That, in turn, led to more emergency hospital admissions. Many of those admitted had more serious illnesses and needed to stay for longer, which resulted in increased demand for beds, especially among the elderly and other vulnerable groups.
Despite those pressures, the NHS in Shropshire coped admirably. No local hospital was closed to blue-light cases. Sound bed management between trusts kept disruption to the minimum. As far as I am aware, no individual complaints were logged with the health authority about services during that period, and I have not been made aware of any investigation by local trusts. As

always, I should be happy to mount a proper investigation into any of the cases that the hon. Gentleman raised and let him have the results.
Taking account of the expected close-down during the holiday period, and the reductions in activity caused by winter pressures, is part of the normal winter planning that deals with waiting lists. Indeed, we always expect less elective activity to take place during December and January.
The waiting list figures rose in December and January, both nationally and locally, and those increases reflected the priority given to emergency cases by the NHS. The increases were anticipated and did not prevent us from meeting our manifesto commitment well in advance of the date pledged. The waiting list in Shropshire fell by 578 between the end of November 1999 and the end of March 2000.
Now I shall deal specifically with waiting lists. On coming to office, we inherited a record and disgraceful number of people waiting for NHS treatment, and increasing waiting times, which were unacceptable in the modern health service. That is why, unlike the Conservative party, we are committed to reducing not only the number of people waiting, but the time that they wait. We have already achieved our manifesto commitment to reduce NHS waiting lists by 100,000 from the numbers that we inherited, during the lifetime of this Parliament—and we did so well in advance of the deadline. The waiting list fell by 51,000 in March and is now 121,000 below the level inherited from the previous Government. In Shropshire, the in-patient waiting list fell by 704 last year, which made a welcome contribution to our achievement of the manifesto commitment.
As in-patient waiting lists have fallen, so have waiting times. It is important to recognise that the number of over-12-month waiters is a third lower than in June 1998. Most in-patients are seen within a much shorter time. The latest figures show that about 70 per cent. are admitted within three months of being placed on a waiting list.
Last year, the in-patient waiting list fell by 36,000, and the number of over-13-week out-patient waiters fell by 54,000. In the final year of the previous Administration, the number of in-patients rose by 110,000 and the number of over-13-week out-patient waiters by 31,000.
As I said earlier, we allocated a recurrent £2.24 million to Shropshire health authority to support reductions in waiting lists and times. The £660 million allocated to the service following the Chancellor's Budget statement included a further £5.3 million for Shropshire health authority.
That money will support various initiatives under way in Shropshire to reduce waiting lists and times. Those measures are important for the long-term planning and expansion of capacity, and for speed of treatment. They include the funding of additional out-patient and in-patient sessions at the Royal Shrewsbury, Princess Royal and Robert Jones Hunt hospitals, the employment of an extra consultant and part-time anaesthetist at the Robert Jones and Agnes Hunt Trust, and the use of fast-track back pain clinics run by physiotherapists.
We promised to tackle in-patient waiting lists, and we have done so. Now we are applying the same determination to tackling out-patient waiting lists and


times. Between December 1999 and March 2000, the number of people waiting more than 13 weeks for an out-patient appointment fell by 94,000.

Mr. Paterson: Does the Minister think that the measures that the Government have taken will be enough to prevent similar problems from occurring this winter if the incidence of flu is roughly what it was in 1999–2000?

Ms Stuart: We hope that, with the measures that we are taking, we will manage the extra pressures over the winter period even more efficiently than we did this year.
We have also put in place measures for patients who are referred urgently with suspected cancer. They should be seen by a specialist within two weeks of their GP referring them. Patients with coronary heart disease will also be able to get easier and faster access to treatment. That is often achieved by reconfiguring the way in which the services are run. In October last year, we announced £50 million to be used over the next two years to increase the number of heart operations by 3,000.
On 6 March, my right hon. Friend the Secretary of State announced the national service framework for coronary heart disease. He also announced a new £3 million plan to test the streamlining of cardiac services to provide better and faster services for patients in different parts of the country—for example, through one-stop diagnosis or re-engineering services to reduce waiting times and cancellations.
We are improving services for patients with suspected or diagnosed cancer through the cancer services collaborative. The programme, which is funded by £6 million over two years, aims to streamline and re-design services at nine cancer networks across the country.
The cancer services collaborative is already producing excellent results. The hon. Gentleman may be interested to know that the Birmingham collaborative team have been able to cut the waiting time for oncology for patients with bowel cancer from 13 weeks to six weeks. We are encouraging the spread of the good practice developed by

the Birmingham collaborative across the west midlands region. This year, we will be taking a similar approach to the cancer services collaborative for coronary heart disease.
We shall continue to ensure that clinical priority is the main determinant of when patients are treated. We have repeatedly made it clear that patients in the greatest need must continue to be treated first. We expect the NHS to implement this guidance in meeting its waiting list targets, and we have been absolutely clear about that. We have great expectations that those guidelines will be followed.
We want to modernise the NHS. That means re-designing the services that are crucial to patients. At a national level, the national booked admissions programme is part of our on-going commitment to modernising the health service. Through the use of booking systems, patients are able to agree dates that suit them, allowing them to make the necessary work and child care arrangements. The system also takes away the uncertainty of not knowing how long the wait will be. Booking means fewer operations cancelled by the hospital, and ensures that fewer patients fail to turn up for their appointments. The Royal Shrewsbury and Princess Royal hospitals in Shropshire were chosen to participate in the first wave of the national booked admissions programme, which began in November 1998. The trusts' work on booked admissions was supported by £195,000 in funding. A further project at the Princess Royal NHS trust to investigate different processes of care in delivering booked admissions will be funded until March 2001. We announced a third wave of the national booked admissions programme on 12 April, and we want every acute hospital to have such a programme eventually.
We want to bring down waiting lists and times and keep them down, and we are determined to ensure that the improvements we make are sustainable. This is not a one-off, short-term initiative. We have already started planning for next winter, and I am confident that an even better service will be provided for the hon. Gentleman's constituents next winter than the excellent service provided this year.

Question put and agreed to.

Adjourned accordingly at one minute past Three o'clock.